PETITIONER:
S.P. MITTAL ETC. ETC.
Vs.
RESPONDENT:
UNION OF INDIA AND OTHERS
DATE OF JUDGMENT08/11/1982
BENCH:
MISRA, R.B. (J)
BENCH:
MISRA, R.B. (J)
CHANDRACHUD, Y.V. ((CJ)
BHAGWATI, P.N.
REDDY, O. CHINNAPPA (J)
ERADI, V. BALAKRISHNA (J)
CITATION:
1983 AIR 1 1983 SCR (1) 729
1983 SCC (1) 51 1982 SCALE (2)1001
CITATOR INFO :
RF 1984 SC 51 (8A)
R 1987 SC 748 (19)
RF 1992 SC1277 (22)
ACT:
Right to freedom of religion and to manage religious
affairs-Constitution of India, 1950 Articles 25 and 26-Shri
Aurobindo's teachings cannot be said to be of a religious
nature-Aurobindo Society and the Auroville township do not
fall within the meaning of religious denomination so as to
be violative of Articles 25 and 26 of the Constitution.
Words & Phrases-'Religion' and 'Religious denomination'
explained.
Auroville (Emergency Provisions) Act, 1980 (Act LIX of
1980) Preamble-Parliamentary competency to enact the Act-
Whether inconsistent and in conflict with the provisions of
the West Bengal Societies Registration Act, 1961 (Act XXVI
of 1961) Sections 22 & 23 containing in built self-contained
provisions for dealing with the management of the registered
societies-Constitution of India 1950 Article 245, Schedule
VII, List I Entry 32-Functions of the Lists, Explained.
Auroville (Emergency Provisions) Act 1980 providing for
taking over the management only of Auroville township and
its activities for a limited period is not violative either
of Article 14, Articles 25 and 26 or Articles 29 and 30 of
the Constitution.
HEADNOTE:
Sri Aurobindo, one of the Indian sages and philosphers,
after a brilliant academic and administrative career engaged
himself for sometime in political activities and
revolutionary literary efforts, but later on gave them up to
concentrate himself with the life of medition and integral
yoga at Pondicherry, in Tamil Nadu. Madam M. Alfassa a
French Lady, who came to be known as the Mother became a
disciple of Sri Aurobindo. Very soon more and more disciples
came to join him from various parts of India and abroad and
thus the Aurobindo Ashram came into being. The disciples and
devoted followers of Sri Aurobindo and the Mother, with a
view to propagate and practise the ideals and beliefs of Sri
Aurobindo formed a Society called Sri Aurobindo Society in
the year 1960, which at all material times was and is still
a society duly registered under the provisions of the West
Bengal Societies Registration
730
Act, 1961. This Society is completely distinct from
Aurobindo Ashram in Pondicherry. The Society was established
and registered for the purpose of carrying out in and out
side India the several objects stated in the memorandum of
the Society.
The management of the Society vested in its Executive
Committee. Rules and regulations have been duly framed for
the management of the Society and also for safe custody and
protection of its assets, properties and funds.
Sri Aurobindo Society preaches and propagates the
ideals and teachings of Sri Aurobindo, inter alia, through
its numerous centres scattered throughout India by way of
weekly meetings of its members.
The Mother as the founder-president also conceived of a
project of setting up a cultural township known as
'Auroville' where people of different countries are expected
to engage in cultural, educational and scientific and other
pursuits aiming at human unity. The Society has been a
channel of funds for setting up the cultural township known
as Auroville.
At the initiative of the Government of India, the
United Nations Educational, Scientific and Cultural
Organisation being of the opinion that the Auroville project
would contribute to international understanding and
promotion of peace sponsored the project by proposing a
resolution to this effect at its General Conference in 1966.
This resolution was unanimously adopted at this conference.
By a further resolution passed in 1968 the UNESCO invited
its member States and international non-governmental
organisations to participate in the development of Auroville
as an international cultural township to bring together the
values of different cultures and civilisations in harmonious
environment with integrated living standards, which
corresponds to man's physical and spiritual needs. In 1970
UNESCO had directed its Director-General to take such steps
as may be feasible, within the budgetary provisions to
promote the development of Auroville as an important
international cultural programme. Sri Aurobindo Society
received large funds in the shape of grants from different
organisations in India and abroad for development of that
township. The assistance included contributions from the
State Governments of the value of Rs. 66.50 lakhs and the
Central Government of the value of Rs. 26.14 lakhs.
After the death of the Mother on 17th of November, 1973
a number of problems of varying nature affecting the smooth
running of the project cropped up. The Government of India
on receiving complaints about mismanagement of the project
and misuse of funds by Sri Aurobindo Society set up a
committee under the chairmanship of the Governor of
Pondicherry with representatives of the Government of Tamil
Nadu and of the Ministry of Home Affairs in the Central
Government to look into the matter. The Committee made a
detailed scrutiny of the accounts of Sri Aurobindo Society
relating to Auroville and found instances of serious
irregularities in the management of the Society, mis-
utilisation of its funds and their diversion to other
purposes. Further, various other serious difficulties had
arisen plaguing the Management of Auroville and rendering
thereby any further growth of the township almost
impossible.
731
In the circumstances the taking over of the management of
Auroville became imperative to ensure growth of the township
in tune with its objectives.
Keeping in view the international character of the
project and considering the government's involvement in
actively sponsoring the project through UNESCO, the growth
and management of the project had become the primary
responsibility of the Government of India. The ideals of the
project formed India's highest aspirations, which could not
be allowed to be defeated or frustrated. Sri Aurobindo
society had lost complete control over the situation and the
members of the Auroville approached the Government of India
to give protection against oppression and victimisation at
the hands of the said Society. There were internal quarrels
between the various factions of Sri Aurobindo Society. There
have also been instances of law and order situation.
Financial management of the projects has not been sound and
several instances of mismanagement, diversion of funds have
been revealed. A large sum of money was given by Sri
Aurobindo Society to AURO construction-an agency whose
status. is not at all defined, whose functions and
capabilities for taking up large construction works also had
not been made known. The Government in the circumstances
could not be a silent spectator to the mismanagement of the
project and internecine quarrels amongst its members, which
if not checked could lead to the destruction of the project
so nobly conceived. The Government, therefore, decided to
issue a Presidential Ordinance. After the filing of the writ
petition the ordinance has now been replaced by the
Auroville (Emergency Provisions) Act, 1980.
The constitutional validity of the Act has been
challenged on four grounds: (i) Parliament has no
legislative competence to enact the impugned statute; (ii)
The impugned Act infringes Articles 25, 26, 29 and 30 of the
Constitution; (iii) The impugned Act is violative of Article
14 of the Constitution; and (iv) The Act was mala fide.
Dismissing the petitions, the Court
^
HELD:
(Per Misra, J.)
1:1. The Parliament had the legislative competence to
enact the Auroville (Emergency Provisions) Act, 1980 (Act
LIX) of 1980. [770 D]
1:2. The subject matter of the impugned Act is not
covered by Entry 32 of List II of the Seventh Schedule. Even
if the subject matter of the impugned Act is not covered by
any specific entry of List I or III of the Seventh Schedule
of the Constitution it would in any case be covered by the
residuary entry 97 of List I. [770 C-D]
1:3. The function of the Lists in the Seventh Schedule
to the Constitution is not to confer powers. They merely
demarcate the legislative fields. The Entries in the three
Lists are only legislative heads or fields of legislation
and the
732
power to legislate is given to appropriate legislature by
Articles 245 to 248 of the Constitution. [766 H, 767 A]
1:4. The Auroville Act even incidentally does not
trench upon the field covered by the West Bengal Societies
Registration Act, 1961 as it is in no way related to
Constitution, regulation and winding up of the Society. [770
B]
R.C. Cooper v. Union of India [1970] 3 SCR 530 @ 563,
applied.
Attorney General for Ontario v. Attorney General for
the Dominion [1896] AC 348 @ 366-67; Union of India v. H.S.
Dhillon [1972] 2 SCR 33 @ 45; Board of Trustees, Ayurvedic
and Unani Tibia College v. The State of Delhi and Others
[1962] 1 Supp. SCR 156; Katra Education Society v. State of
Uttar Pradesh and Others [1966] 3 SCR 328, referred to.
2:1. The words "religious denomination" in Article 26
of the Constitution must take their colour from the word
'religion' and if this be so, the expression "religious
denomination" must also satisfy three conditions:
(i) It must be a collection of individuals who has a
system of beliefs or doctrine which they regard as
conducive to their spiritual well-being, that is,
a common faith;
(ii) Common organisation: and
(iii)Designation by a distinctive name. [774 B-D]
2:2. The term 'religion' has been judicially considered
in the Commissioner of Hindu Religious Endowments, Madras v.
Sri Lakshmindra Thirtha Swamiyar of Sri Shriur Mutt [1954]
SCR 1005 and the following propositions of law laid down
therein have been consistently followed in later cases
including The Durgah Committee, Ajmer and Another v. Syed
Hussain Ali & Others [1962] 1 SCR 383 @ 410-11 :
(1) Religion means "a system of beliefs or doctrines
which are regarded by those who profess that
religion as conducive to their spiritual well
being";
(2) A religion is not merely an opinion, doctrine or
belief. It has its outward expression in acts as
well;
(3) Religion need not be theistic;
(4) "Religious denomination" means a religious sect or
body having a common faith and organisation and
designated by a distinctive name;
(5) A law which takes away the rights of
administration from the hands of a religious
denomination altogether and vests in another
733
authority would amount to violation of the right
guaranteed under clause (d) of Article 26." [773
E-H, 774A]
Per Majority [Misra, J for himself, Y. V. Chandrachud,
C.J., P. N. Bhagwati and V. Balakrishna Eradi, JJ. and
Chinnappa Reddy, J. dissenting.]
2:3. On the basis of the materials the Memorandum of
Association of the Society, the several applications made by
the Society claiming exemption under s. 35 and s. 80 of the
Income-tax Act, the repeated uttering of Sri Aurobindo and
the Mother that the society and Auroville were not religious
institutions and host of other documents there is no room
for doubt that neither the Society nor Auroville constitute
a religious denomination and the teachings of Sri Aurobindo
only represented his philosophy and not a religion. [793 D-
E]
Numerous Uttering by Sri Aurobindo or the Mother
unmistakably show that the Ashram or Society or Auroville is
not a religious institution. There can be no better proof
than what Sri Aurobindo and the Mother themselves thought of
their teachings and their institutions to find out whether
the teachings of Sri Aurobindo and his Integral Yoga
constitute a religion or a philosophy. The Uttering made
from time to time by Sri Aurobindo and the Mother hardly
leave any doubt about the nature of the Institution. It was
on the basis that it was not a religious institution, that
the Society collected funds from the Central Government, the
Governments of States, other non-Governmental agencies. and
from abroad. [792 B-D, 793 A]
Even assuming but not holding that the Society or the
Auroville were a religious denomination, the impugned
enactment is not hit by Articles 25 and 26 of the
Constitution. The impugned enactment does not curtail the
freedom of conscience and the right freely to profess,
practise and propagate religion. Therefore, there is no
question of the enactment being hit by Article 25. [793 E-F]
2:4. The impugned enactment does not stand in the way
of the Society establishing and maintaining institutions for
religious and charitable purposes, It also does not stand in
the way of the Society to manage its affairs in matters of
religion. [794 A-B]
2:5. Even assuming that the society or Auroville was a
religious denomination, clause (b) of Art. 26 guarantees to
a religious denomination a right to manage its own affairs
in matters of religion. Besides the right to manage its own
affairs in matters of religion, which is given by clause
(b), the next two clauses of Art. 26 guarantee to a
religious denomination the right to acquire and own property
and to administer such property in accordance with law. The
administration of its property by a religious denomination
has thus been placed on a different footing from the right
to manage its own affairs in the matters of religion. The
latter is a fundamental right which no legislature can take
away, whereas the former can be regulated by laws which the
legislature can take away,
734
whereas the former can be regulated by laws which the
legislature can validity impose. It is clear, therefore,
that question merely relating to a religions group or
institution are not matters of religion to which clause of
article applies.[800 H, 801 A-B]
2:6. The impugned Act had not taken away the right of
management in matters of religion or a religious
denomination, if the Society or Auroville is a religious
denomination at all, rather it has taken away the right of
management of the property of Auroville. Thus the impugned
Act neither violates Article 25, nor Article 26 of the
Constitution. [801 C-D]
The Commissioner of H. R. & C. E. Madras v. Lakshmindra
Tirtha Swamiyar of Sri Sirur Mutt [1954] S.C.R. 1005; The
Durgah Committee Ajmer and Another v. Syed Hussain Ali
[1962] 1 S.C.R, 383; Tilkyat Shri Govindlalji Maharaj v.
State of Rajasthan & others [1964] 1 S.C.R. 561; Sastri
Yagnapurushadri & Others v. Muldas Bhudardas Vysya & Another
[1966] 3 S.C.R. 242; Divyadassan Rajendra Ramdassji &
Another v. State of Andhra Pradesh [1970] 1 S.C.R. 103;
Nalaw Ramalingayya v. The Commissioner of Charitable and
Hindu Religious Institutions and Endowments Hyderabad A.I,R.
1971 (AP) 320; T. Krishnan v. G.D.M. Committee A.I.R, 1978
Kerala 68; applied.
3. On an analysis of Articles 29 and 30 and the
decided cases it is evident that the Auroville Act does not
seek to curtail the right of any section of citizen to
conserve its own language, script or culture conferred by
Article 29. The benefit of Art. 30(1) can be claimed by the
community only on proving that it is a religious or
linguistic minority and that the institution was established
by it. Since Auroville or the Society is not a religious
denomination, Articles 29 and 30 would not be attached and,
therefore, the impugned Act cannot be held to be violative
of Articles 29 and 30 of the Constitution. [805 A-C]
In re: The Kerala Education Bill [1959] SCR 995;
Reverend Sidhaibhai Serbhai and Others v. State of Bombay
and Another [1963] 3 SCR 837 @ 856; State of Kerala v.
Mother Provincial [1971] 1 SCR 734; applied.
4. The Auroville Take over Act cannot be said to be
violative of Article 14 of the Constitution, which action
was taken after full consideration of various aspects of the
problem, for the reasons namely, (i) it has not been pointed
out which were the other institutions where similar
situations were prevailing; and (ii) there is a uniqueness
with this institution inasmuch as the Government is also
involved. Even a single institution may be taken as a class.
The situation prevailing in the Auroville had converted the
dream of the Mother into a nightmare. There had arisen acute
law and order situation in the Auroville, numerous cases
were pending against various foreigners, the funds meant for
the Auroville had been diverted towards other purposes and
the atmosphere was getting out of hand. In the circumstances
the Government intervened and promulgated the Ordinance and
later on substituted it by the impugned enactment.
[814 B-D]
735
Budhan Choudhary v. The State of Bihar [1955] 1 SCR
1045: Shri Ramakrishna Dalmia v. Sri Justice S.R. Tandolkar
and Others [1959] SCR 279; Raja Birakishore v. The Sate of
Orissa [1964] 7 SCR 32, followed.
Ram Prasad Narayan Sahi and Another v. State of Bihar
and Others [1953] SCR 1129; distinguished.
5:1. Whether the remedies provided under the Societies
Registration Act were sufficient to meet the exigencies of
the situation is not for the Court to decide but it is for
the Government and if the Government thought that the
conditions prevailing in the Auroville and the Society can
be ameliorated not by resorting to the provisions of the
Societies Registration Act but by a special enactment, that
is an area of the Government and not of the Court. [818 E-F]
5:2. It is not correct to say that the facts stated in
the preamble of the Act were non est. Obviously there were
serious irregularities in the management of the said
society. There has been mis-utilisation of funds and their
diversion to other purposes. This is evident from the audit
report. There was no material change in the situation on the
date of the impugned ordinance or the Act, rather the
situation had grown from bad to worse and the sordid
situation prevailing in the Auroville so pointed out by the
parties fully justified the promulgation of the Ordinance
and the passing of the enactment. Of course, each party
tried to apportion the blame on the other. Who so ever be
responsible, the fact remains that the prevailing situation
in the Auroville was far from satisfactory. The amount
donated for the construction of the cultural township
Auroville and other institutions was to the tune of Rs. 3
crores. It was the responsibility of the Government to see
that the amount was not misutilised and the management was
properly carried out. On a perusal of the audit report,
which is a voluminous one, all that can be said is that on
the facts found by the audit committee, the report is rather
a mild one. There seems to be serious irregularities in the
accounts. A substantial amount received by way of donations
had not been properly spent, there being mis-utilisation and
diversion of the funds. [819 B-F]
5:3. Even assuming that the facts brought to the notice
of the legislature were wrong, it will not be open to the
Court to hold that Act to be bad on that account. The Court
would not do so even in case of a litigation which has
become final on the ground that the facts or the evidence
produced in the case were not correct. The Parliament had to
apply its mind on the facts before it.
[819 F-H]
We can normally assume that the Government would
certainly appoint a responsible person as an administrator
especially when there is a heavy stake in which the
Government of India is also involved in as much as at the
instance of the Government the UNESCO gave financial support
to the institution.
[820 F-G]
6. The contention that the report of the committee was
tainted as Shri Kulkarni the Chairman and Secretary were
parties, is without any foundation. The allegation of the
impugne Act being malafide is equally devoid of force.
736
Kiriti Joshi cannot be said to have his own axe to grind in
the matter or was instrumental in getting the impugned
Ordinance and the Act passed. Allegations about mala fides
are more easily made than made out. Merely because he made a
complaint about the situation prevailing in the management
of Auroville and the Society, it cannot be said that the
impugned enactment was passed at his behest. [820 H, 821 B-
C]
Per Chinnappa Reddy, J. (Dissenting)
1:1. Shri Aurobindo truly was a religious teacher and
taught and was understood to have taught new religious
doctrine and practice. Therefore, Aurobindoism, can
certainly be classified if not as a new religion, as a new
sect of Hinduism and the followers of Sri Aurobindo can be
termed a religious denomination. Sri Aurobindo of course,
disclaimed that he was founding a religion. No great
religious teacher ever claimed that he was founding a new
religion or a new school of religious thought. The question
is not whether Sri Aurobindo refused to claim or denied that
he was founding a new religion or a new school of religious
thought but whether his disciples and the community thought
so. There is no doubt that they did not only his disciples
and followers, but religious leaders all the world over and
of all faiths. Therefore, Aurobindo Society is a sect of a
religious determination within the meaning of the expression
in Article 26 of the Constitution. [754 G-H, 755 A-B, F-G]
1:2. The word 'religion' does not occur in the Preamble
to the constitution, but the Preamble does promise to secure
to its citizens "Liberty of thought, expression, belief
faith and worship". The freedom of conscience and the Right
to profess, propagate and practise religion guaranteed in
Article 25 flow out of the idea so expressed in Preamble.
Freedom of conscience is not to be separated from the Right
to profess, practise and propagate religion. They go
together and together they form part of the Right to Freedom
of Religion. It is clear from Article 25 that secular
activity may be associated with Religion. though the
guarantee of the article does not extend to such activity.
Article 26 guarantees that every religious denomination or
any section thereof shall have the right, subject to public
order, morality and health, to establish and maintain
institutions for religious and charitable purposes, to
manage its own affairs in matters of religion, to own and
acquire movable and immovable property and to administer
such property in accordance with law. Several provisions of
the constitution where the expression 'religion' and
'religious denomination' are used are either those which are
concerned with equality and equal opportunity or those which
are concerned with freedom of religion. [742 D, F, G-H, 743
A, C]
1:3. Reading Art. 25 in the background of the
proclamation regarding Liberty in the Preamble to the
constitution, it is clear that (i) the constitution views
religion as comprising thought, expression, belief, faith or
worship, as involving the conscience and as something which
may be professed, practised and propagated and which is any
man's attribute in the same manner as race, sex, language,
residence etc: (ii) economic, financial, political or other
secular activity may be associated with religious practice
though such activity is not covered by the guarantee of
freedom of conscience and the right freely to
737
profess, practise and propagate, religion; and so Religion
is a matter of thought, expression, belief, faith and
worship, a matter involving the conscience and a matter
which may be professed, practised and propagated by anyone
and which may even have some secular activity associated
with it. [744 F-H, 745 A]
1:4. Religion undefined by the constitution, is
incapable of precise judicia definition either. In the
background of the provisions of the constitution and the
light shed by judicial precedent, it can at best be said
that religion is a matter of faith. It is a matter of belief
and doctrine. It concerns the conscience i.e. the spirit of
man. It must be capable of overt expressions in work and
deed, such as worship or ritual. So religion is a matter of
belief and doctrine concerning the human spirit expressed
overtly in the form of ritual and worship. Some religions
are easily identifiable as religious; some are easily
identifiable as not religious. There are many in the
penumbral region which instinctively appear to some as
religion and to others as not religions. There is no formula
of general application. There is no knife-edge test.
Primarily, it is a question of the consciousness of the
community, how does the fraternity or sodality (if it is
permissible to use the word without confining it to Roman
Catholic Groups) regard itself, how do others regard the
fraternity or sodality. A host of other circumstances may
have to be considered, such as, the origin and the history
of the community, the rituals observed by the community,
what the founder, if any, taught, what the founder was
understood by his followers to have taught, etc. In origin,
the founder may not have intended to found any religion at
all. He may have merely protested against some rituals and
observances, he may have disagreed with the interpretation
of some earlier religious tenets. What he said, what he
preached and what he taught, his protest, his distant, his
disagreement might have developed into a religion in the
course of time, even during his life-time. He may be against
religion itself, yet, history and the perception of the
community may make a religion out of what was not intended
to be a religion and he may be hailed as the founder of a
new religion. [750 B-G]
And, whatever the ordinary features of a religious
denomination may be considered to be, all are not of equal
importance and surely the common faith of the religious body
is more important than the other features. [751 C]
The Commissioner of HR and C.E., Madras v. Lakshmindra
Tirtha Swamiyar of Sri Shirur Mutt [1954] S.C.R. 1005;
Ratilal Panachand Gandhi v. The State of Bombay [1954]
S.C.R. 1055; Durgah Committee of Ajmer v. Sayed Hussain Ali
JUDGMENT:
Maharaj v. The State of Rajasthan and Others [1964] 1 S.C.R.
561; Raja Virakishore v. State of Orissa [1964] 7 S.C.R. 32;
Sasti Yagnapurushadji and Others v. Muldas Bhudardas Vaisnya
and Another [1966] 3 S.C.R. 242; referred to.
1:5. Judidial definitions are not statutory
definitions; they are mere explanations, every word of which
is not to be weighed in golden scales. Law has a tendency to
harden with the passage of time and judicial pronouncements
are made to assume the form of statutory pronouncements. So
soon as a word or expression occurring in the statute is
judicially defined, the tendency is to try to interpret the
language employed by the judges in the judicial definition.
That is wrong. Always words and expressions to be
interpreted are those employed in
738
the statute and not those used by judges for felicitous
explanation, Judicial definition is explanatory and not
definitive. [751 C-E]
1:6. Religious denomination has not to owe allegiance
to any parent religion. The entire following of a religion
may be no more than the religious denomination. This may
particularly be so in the case of small religious groups or
‘developing’ religions, that is, religions in the formative
stage. So Aurobindoism can be termed as a religious
denomination. The world and India treated and respected Shri
Aurobindo as a religious teacher and the founder of a new
religion. [751 E-G]
2:1. Auroville (Emergency Provisions) Act. 1980 did not
take away or purport to take away the management of the Shri
Aurobindo Society. Parliament concerned itself with the
management of Auroville only and with no other activity of
the Shri Aurobindo Society, including ‘its affairs in
matters of religion’. In fact, section 4(2) makes it
explicit that, except for matters relating to the management
of Auroville, the provisions of the West Bengal Societies
Registration Act, 1961, under which the Society was
registered, shall continue to apply to the Society in the
same manner as before. [755 G-H, 757 C-D]
2:2. The management of the International, cultural
township of Auroville cannot be said to be a matter of
religion. Auroville is a township and not a place of the
worship. It is a township dedicated, not to the practice and
the propagation of any religious doctrine but to promote
international understanding and world peace, surely, a
secular and not a religious activity. The highest that can
be said in favour of Auroville being a religious institution
or its management being a religious matter, is that it was
conceived by the Mother and shaped and sculpted by Shri
Aurobindo’s disciples and followers in the pursuit of one of
the ideas and ideals of Shri Aurobindo, a great religious
teacher. On the other hand, the ideal itself, that is, the
promotion of international understanding and world peace is
by no means a religious ideal and it was because of the
nature of the ideal that the Government of India and the
UNESCO adopted the project. Shri Aurobindo himself was not a
mere religious teacher. He was a visionary, a humanist and a
nationalist who had blossomed into an internationalist.
Therefore, Auroville, though the child of the Mother and
though nurtured by the devotees of Shri Aurobindo, has an
individuality, distinctly secular of its own. Hence,
Auroville (Emergency Provisions) Act which provides for the
taking over the management of Auroville for a limited period
does not offend the rights guaranteed by Articles 25 and 26
of the Constitution. [757 E-H, 758 C]
2:3. The rights guaranteed by Articles 29 and 30 cannot
be said to have been infringed by the Auroville Emergency
provisions Act. No section of citizens having a culture and
no religious minority has been denied the right to establish
and administer an educational institution of its choice.
[758 D-E]
739
&
ORIGINAL JURISDICTION: Writ Petition No. 5879 of 1980.
(Under Article 32 of the Constitution of India)
AND
Writ Petition No. 5877 of 1980.
(Under Article 32 of the Constitution of India)
AND
Transfered Case No. 29 of 1981.
(Calcutta High Court Writ Petition No. 11508 of 1981)
With
Civil Appeal No. 2819 of 1980.
(Appeal by special leave from the judgment and order
dated 21st November, 1980 of the Division Bench of the High
Court of Calcutta in F.M.A.T. No. 3408 of 1980)
Soli J. Sorabji, K.K. Venugopal, S. Rangarajan, S.
Balakrishnan, M.K.D. Namboodiry, P. Radhakrishnan, N.A.
Subrahmaniam, C.S. Vaidyanathan, M.N. Krishna Mani and
Vinnet Kumar for the Petitioners and Appellant.
L.N. Sinha, Attorney General, K. Parasaran, Solicitor
General, M.K. Banerji, Additional Solicitor General, Govind
Swaminadhan, for R. 3, N. Nettar and Miss A. Subhashini for
Respondents Nos. 1 to 4.
T.S. Krishnamoorthy Iyer and Raju Ramchandran for
Respondent No. 5.
F.S. Nariman, Anil B. Divan, P.H. Parekh, Mrs. Vineeta
Sengupta, Gautam Philip and Sanjeev Agarwal for Respondent
Nos. 6 to 240 in WPs. & CA.
P.P. Rao, P.C. Kapur and R. Venkataramani for
interveners 1-88.
740
FOR APPLICANT/INTERVENERS
A.B. Patel: - R.B. Datar
Indra Sen: - N.M. Kshatriya,
R.K. Habbu: - B.R. Aggarwala,
Catholic Bishop Con- - P.A. Francis, J.B. Dadachanji
ference of India: and D.N. Mishra
The following Judgments were delivered
CHINNAPPA REDDY, J. I have the good fortune of having
before me the scholarly judgment of my brother Misra J., I
agree with my brother Misra, J that the Writ Petitions must
fail. With much that he has said, also, I agree. But with a
little, to my own lasting regret, I do not agree. It is,
therefore, proper for me to explain the points of my
disagreement.
Quite a considerable part of the hearing of the
petitions was devoted to a debate on the question, what is
Religion ? Religion: Everyone has a religion, or at least, a
view or a window on religion, be he a bigot or simple
believer, philosopher or pedestrian, atheist or agnostic.
Religion, like ‘democracy’ and ‘equality’ is an elusive
expression, which everyone understands according to his pre-
conceptions. What is religion to some is pure dogma to
others and what is religion to others is pure superstition
to some others. Karl Marx in his contribution to the
Critique of Hegel’s Philosophy of Law described religion as
the ‘Opium of the people’. He said further “Basically
religion is a very convenient sanctuary for bourgeois
thought to flee to in times of stress. Bertrand Russell, in
his essay ‘Why I am not Christian’, said, “Religion is
based, I think, primarily and mainly upon fear.” It is
partly the terror of the unknown and partly, as I have said,
the wish to feel that you have a kind of elder brother, who
will stand by you in all your troubles and disputes. Fear is
the basis of the whole thing-fear of the mysterious, fear of
defeat, fear of death. Fear is the parent of cruelty, and,
therefore, it is no wonder if cruelty and religion have gone
hand in hand. As a worshipper at the alter of peace, I find
it difficult to reconcile myself to religion, which
throughout the ages, has justified war calling it a Dharma
Uddha, a Jehad or a
741
Crusade. I believe that by getting mixed up with religion,
ethics has lost ‘much of its point, much of its purpose and
a major portion of its spontaneity’. I apprehend I share the
views of those who have neither faith nor belief in religion
and who consider religion as entirely unscientific and
irrational. Chanting of prayer appears to me to be mere
jingoism and observance of ritual, plain superstition. But
my views about religion. my prejudices and my predilections,
if they be such, are entirely irrelevant. So are the views
of the credulous, the fanatic, the bigot and the zealot. So
also the views of the faithful, the devout, the Acharya, the
Moulvi, the Padre and the Bhikshu each of whom may claim his
as the only true or revealed religion. For our present
purpose, we are concerned with what the people of the
Socialist, Secular, Democratic Republic of India, who have
given each of its citizens Freedom of conscience and the
right to freely profess, practise and propogate religion and
who have given every religious denomination the right to
freely manage its religious affairs, mean by the
expressions’religion’ and ‘religious denomination’. We are
concerned with what these expressions are designed to mean
in Arts. 25 and 26 of the Constitution. Any Freedom or Right
involving the conscience must naturally receive a wide
interpretation and the expression ‘religion’ and ‘religious
denomination’ must therefore, be interpreted in no narrow,
stifling sense but is a liberal, expansive way.
Etymology is of no avail. Religion is derived from
‘religare’ which means “to bind”. Etymologically, therefore,
every bond between two people is a religion, but that is not
true. To say so is only to indulge in etymological
deception. Quite obviously, religion is much more than a
mere bond uniting people.
Quite obviously, again, religion is not to be confined
to the traditional, established, well-known or popular
religions like Hinduism, Mahomedanism, Buddhism and
Christianity. There may be and, indeed, there are, in this
vast country, several religions, less known or even unknown
escept in the remote corners or in the small pockets of the
land where they may be practised. A religion may not be
wide-spread. It may have little following. It may not have
even a name, as indeed most tribal religions do not have. We
may only describe them by adding the suffix ‘ism’ to the
name of the founder-teacher, the tribe, the area or the
deity. The nomenclature is not of the essence. Again, a band
of persons, large or small, may not be said to be
742
adherents of a religion merely because they share some
common beliefs and common interests and practise common
rites and ceremonies; nor can pietistic recitation and
solemn ritual combine to produce religion, on that account
only. Secret societies dedicated to secular tasks and
indulging in queer oaths and observances, guilds and groups
of persons who meet but to dine and wine but who subject
their members to extravagant initiation ceremonies, village
and tribal sorcerers and coven of witches who chant rant and
dance in the most weird way possible are all far removed
from religion. They appear to lack the ‘spiritual
connection’. But, all this is unsatisfactory. We are not
arriving at any definition of religion. We are only making
peripheral journeys and not getting any nearer to the core
of the problem presented to us.
Let us examine the relevant provisions of the
Constitution for such light as they may throw on the meaning
of the expressions ‘religion’ and religious denomination’.
They are not defined. The word ‘religion’ does not occur in
the Preamble to the Constitution, but the Preamble does
promise to secure to its citizens “Liberty of thought,
expression, belief, faith and worship”. The Freedom of
conscience and the Right to profess, propagate and practice
religion,flow of the idea so expressed in the Preamble. In
Part-III of the Constitution, under the head “Right to
Freedom of Religion”, there are four Articles. Art25(i)
guarantees to all persons, subject to public order, morality
and health and to the other provisions of Part-III of the
Constitution, freedom of conscience and the right freely to
profess, practise and propagate religion. Freedom of
conscience is not to be separated from the Right to profess,
practice and propagate religion. They go together and
together they form part of the Right to Freedom of Religion.
Clause (2) of Art. 25, however, stipulates that the freedom
and the right guaranteed by cl. (1) shall not 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. Or to
provide for social welfare and reform or to throw open Hindu
religious institutions of a public character to all classes
and sections of Hindus. So, the Article makes it clear that
secular activity may be associated with Religion, though the
guarantee of the article does not extend to such activity,
Art. 26 guarantees that every religious denomination or any
section thereof shall have the right, subject to public
order, morality and health, to establish and maintain
institutions for
743
religious and charitable purposes, to manage its own affairs
in matters of religion, to own and acquire movable and
immovable property and to administer such property in
accordance with law.Art. 27 prohibits compulsion for payment
of taxes for promotion of any particular religion. Art. 28
bars religious instruction in any institution wholly
maintained out of State funds and prevents compulsion to
attend any religious instruction or religious worship in
educational institutions recognised by the State or
receiving aid out of State funds.
Apart from Articles 25 to 28, the word ‘religion’
occurs in Arts. 15(1), 15(2), 16(2), 16(5), 23(2), 29(2) and
30 of the Constitution.
Art. 15(1) prescribes that the State shall not
discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them.
Art. 15(2) provides, in particular, that no citizen shall,
on ground only of religion, race, caste, sex, place of birth
or any of them, be subject to any disability, liability
restriction or condition with regard to access to shops,
public restaurants, hotels and places of public
entertainment; or the use of wells, tanks, bathing ghats,
roads and places of public resort maintained wholly or
partly out of State funds or dedicated to the use of the
general public.
Art.16(2) guarantees that no citizen shall, on grounds
only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or
discriminated against in respect of any employment or office
under the State. Art. 16(5) exempts from the right
guaranteed under Art. 16 the operation of any law which
provides that the incumbent of an office in connection with
the affairs of any religious or denominational institution
or any member of the governing body thereof shall be a
person professing a particular religion or belonging to a
particular denomination.
Art. 23(2), while enabling the State to impose
compulsory service for public purposes, prohibits the State
from making any discrimination on grounds only of religion,
race, caste or class or any of them.
744
Art. 29(2) provides that no citizen shall be denied
admission to any educational institution maintained by the
State or receiving aid out of State funds on grounds of
religion, race, caste, language or any of them.
Art. 30(1) guarantees to all minorities, whether based
on religion or language the right to establish and
administer educational institutions of their choice. Art.
30(2) further provides that the State shall not, in granting
aid to educational institutions, discriminate against any
educational institutions on the ground that it is under the
management of a minority, whether based on religion or
language.
It is readily seen that the several provisions of the
Constitution where the expressions ‘religion’ and ‘religious
denomination’ are used are either those which are concerned
with equality and equal opportunity or those which are
concerned with freedom of religion. Art. 15(1), Art. 16(2),
Art. 23(2), Art. 29(2) are the several equality and equal
opportunity clauses of the Constitution which bar
discrimination on the ground of religion, and they place
religion in equation with race, caste, sex, place of birth,
residence and language for the purposes of the various
aspects of equality dealt with by them. Art. 30 recognises
the existence of minority groups based on religion along
with minority groups based on language. Arts. 25 to 28 deal
with the Right to Freedom of Religion which, as we said
earlier is traceable to the idea of “Liberty of Thought,
Expression, Belief, Faith and Worship” in the Preamble to
the Constitution. Art. 25 guarantees freedom of conscience
and the right freely to profess, practise and propagate
religion, but saves laws regulating or restricting any
economic, financial, political or other secular activity
which may be associated with religious practice. Reading
Art. 25 in the background of the proclamation regarding
Liberty in the Preamble to the Constitution, we may safely
conclude that the Constitution views religion, as comprising
thought, expression, belief, faith or worship, as involving
the conscience and as something which may be professed,
practised and propagated and which is any man’s attribute in
the same manner as race, sex language, residence etc. We
also see that economic, financial, political or other
secular activity may be associated with religious practice
though such activity is not covered by the guarantee of
freedom of conscience and the right freely to profess,
practise and propagate religion. So, the Constitution
considers Religion as a matter of thought, expression,
belief, faith and worship, a matter
745
involving the conscience and a matter which may be
professed, practised and propagated by anyone and which may
even have some secular activity associated with it. We have
already said that any Freedom or Right involving the
conscience must naturally receive a wide interpretation and
the expressions ‘Religion’ and ‘Religious Denomination’
must, therefore, be interpreted in no narrow, stifling sense
but in a liberal, expansive way.
How has the Court looked at the expression ‘religion
and ‘religious denomination’ and how has the Court attempted
to define them ? We begin with the well-known Shirur Mutt
case where Mukherjea J, speaking for himself and six of his
colleagues, examined the question in some detail and, of
course, with great erudition. We must first notice that the
Court, there, was considering the question of the vires of
the Madras Hindu Religious and Charitable Endowments Act
1951 which was sought to be made applicable to the
institution known as Shirur Mutt, one of the eight Mutts
situated at Udipi and reputed to have been founded by Shri
Madhwa Charya, the renowned exponent of ‘dualistic thesim’
in the Hindu Religion. The trustees and the beneficiaries of
the Mutt, it was claim and established, were the followers
of Shri Madhwa Charya. The question arose whether the
spiritual fraternity constituted by the followers of Shri
Madhwa Charya could be said to be a ‘religious denomination’
within the meaning of Art. 26, entitling them to manage
their own affairs in ‘matters of religion’. The Court
noticed that while cl. (b) of Art. 26 guaranteed to a
religious denomination the right to manage its own affairs
in matters of religion, other clauses of the Article dealt
with the right of a religious denomination to acquire and
own property and to administer such property in accordance
with law. The administration of its property by a religious
denomination having thus been placed on a different footing
from the right to manage its own affairs in matters of
religion, the Court said:
“the latter is a Fundamental Right which no
legislature can take away, whereas the former can be
regulated by laws which the legislature can validly
impose. It is clear, therefore, that questions merely
relating to administration of properties belonging to a
religious group or institution are not matters of
religion to which clause (b) of the Article applies.”
746
Mukherjea, J, then proceeded to consider what were matters
of religion ? He noticed that ‘religion’ was a term which
was hardly susceptible of any rigid definition. He rejected
the definition given in Davis v. Benson as neither precise
nor adequate and went on to say,
“Religion is certainly a matter of faith with
individuals or communities and it is not necessarily
theistic. There are well known religions in India like
Buddhism and Jainism which do not believe in God or in
any Intelligent First Cause. A religion undoubtedly has
its basis in a system of beliefs or doctrines which are
regarded by those who profess that 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. A religion may not only lay down
a code of ethical rules for its followers to accept, it
might prescribe rituals and observavances, ceremonies
and modes of worship which are regarded as integral
parts of religion, and these forms and dress.”
Mukherjea,J., accepted the following observations of Latham,
CJ in Vide Adelaide Company v. The Commonwealth(1), as fully
applicable to the protection of religion as guaranteed by
the Indian Constitution:
“It is sometimes suggested in discussions on the
subject of freedom of religion that, though the civil
Government should not interfere with religious
opinions, it nevertheless may deal as it pleases with
any acts which are done in pursuance of religious
belief without infringing the principle of freedom of
religion. It appears to me to be difficult to maintain
this distinction as relevant to the interpretation of
section 116. The section refers in express terms to the
exercise of religion, and, therefore, it is intended to
protect from the operation of any Commonwealth laws
acts which are done in the exercise of religion. Thus
the section goes far beyond protecting liberty of
opinion. It protects also acts done in pursuance of
religious belief as part of religion.”
747
Mukherjea, J., thereafter, pointed out that freedom of
religion under the Indian Constitution also was not confined
to religious beliefs only, it extended to religious
practices as well subject to the restrictions which the
Constitution itself had laid down. Under Art. 26(b) he said,
a religious denomination or organisation enjoyed complete
autonomy in the matter of deciding as to what rites and
ceremonies were essential according to the tenets of their
religion they held and no outside authority had any
jurisdiction to interfere with their decision in such
matters. But, he said, the scale of expenses to be incurred
in connection with the religious observances would be a
matter of administration of property belonging to the
religious denomination and to be controlled by secular
authorities in accordance with any law laid down by a
competent legislature. He added,
“It should be noticed, however, that under Art. 26
(d), it is the Fundamental Right of a religious
denomination or its representative to administer its
properties in accordance with the law; and the law,
therefore, must leave the right of administration to
the religious denomination itself, subject to such
restrictions and regulations as it might choose to
impose a law which takes away the right of
administration from the hands of a religious
denomination altogether and vests it in any other
authority, would amount to a violation of the right
guaranteed under cl. D of Art. 26″.
Mukherjea, J also considered the question whether the
followers of Madhwacharya could be considered a religious
denomination and whether Sivalli Brahmins constituted a
section of that religious denomination. The meaning of the
word denomination was culled out from the Oxford Dictionary
where it has been defined to mean ‘a collection of
individuals classed together under the same name. a
religious sect or body having a common faith and
organisation and designated by a distinctive name”.
Reference was then made to “a galaxy of religious teachers
and philosophers who founded the different sects and sub-
sects of the Hindu religion that we find in India at the
present day”. It was emphatically stated that each one of
such sects or sub-sects could certainly be called a
religious denomination as it was designated by a distinctive
name-in many cases it was the name of the founder-and had a
common faith and common spiritual organisation. It was
observed,” the followers of Ramanuja, who are known by the
name of Shri Vaishnobas, undoubtedly constitute a religious
denomination; and so do the
748
followers of Madhwacharya and other religious teachers. It
is a fact well-established by tradition that the eight Udipi
Maths were founded by Madhwacharya himself and the trustees
and the beneficiaries of these Maths profess to be followers
of that teacher. The High Court has found that the Math in
question is in charge of Sivalli Brahmins who constitute a
section of the followers of Madhwacharya. As Art. 26
contemplates not merely a religious denomination, but also a
section thereof, the Math or the spiritual fraternity
represented by it can legitimately come within the purview
of this article.”
So, in the Shirur Mutt case, Mukherjea J expressed
difficulty in defining the term ‘religion’ with exactitude,
but explained it as something founded upon beliefs or
doctrines, regarded by those professing the religion as
conductive to their spiritual well-being and attended by
practices and observances viewed by the religious community
as integral to the religion. Mukherjea J, however, found
less difficulty in defining ‘religious denomination’ in the
same terms as in the Oxford Dictionary.
Ratilal Panachand Gandhi v. The State of Bombay and
Ors.(1) was decided by five of the Learned Judges who
constituted the Bench which decided the Shirur Mutt case.
What was said in the Shirur Mutt was reiterated and it was
again emphasised that religion was not merely an opinion,
doctrine or belief and that it had its outward expression in
acts as well. The following observations of Davar J, in
Jamshedjee v. Sunnabal(2) were approved: “If this is the
belief of the community, and it is proved undoubtedly to be
the belief of the Zoroastrian community,-a secular judge is
bound to accept that belief-it is not for him to sit in
judgment on that belief, he is not right to interfere with
the conscience of a donor who makes a gift in favour of what
he believes to be the advancement of his religion and the
welfare of his community or mankind”. I have stated almost
at the outset that judges’ faith or lack of faith in
religion is irrelevant in deciding what are matters of
religion.
In the Durgah Committee Ajmer v. Syed Hussain Ali &
others(3) the Court reiterated the position that the freedom
guaranteed by Art. 25(1) was not only the right to entertain
such religious beliefs as
749
my appeal to his conscience but also afforded him the right
to exhibit his belief in his conduct by such outward acts as
may appear to him proper in order to spread his ideas for
the benefit of others. A note of caution was, however,
struck and it was said that practices in order to qualify as
matters of religion should be regarded by the said religion
as its essential and integral part. Otherwise, it was
pointed out, even purely secular practices which were not an
essential or an integral part of religion were apt to be
clothed with a religious form and stake a claim for
treatment as religious practices. Mukherjea J’s definition
of ‘religious denomination’ in the Shirur Mutt case was also
accepted and the case was permitted to be argued on the
broad and general ground that the Chishtia Soofies
constituted either a religious denomination or a section of
a religious denomination.
In Tilkayat Shri Govindlalji Maharaj v. The State of
Rajasthan and Ors.(1) the question was whether the famous
Nath Dwara Temple was a public temple? It was held that it
was a public temple. It was assumed that the followers of
Vallabha constituted a religious denomination.
In Raja Virakishore v. State of Orissa(2)-one of the
arguments sought to be advanced before the Supreme Court was
that the worshippers of Lord Jagan Nath constituted a
religious denomination and that the Shri Jagan Nath Temple
Act, which took away the right of management from the
denomination, contravened the Fundamental Right guaranteed
by Art. 26(d) of the Constitution. The answer of the State
was that the temple did not pertain to any particular sect,
cult or creed of Hindus, but was a public temple above all
sects, cults and creeds and, therefore, it was not the
temple of any particular denomination The Court however, did
not permit the worshippers to raise the argument as the
state of pleadings were found to be defective.
In Sasti Yagnapurushad ji and Ors. v. Muldas Bhudardas
Vaishya and Anr.(1) the question arose whether the
Swaminarayan sect followed a religion distinct and separate
from the Hindu religion and whether, consequently, the
temple belonging to the sect was outside the ambit of Bombay
Hindu Places of Public Worships (Entry
750
Authorisation) Act ? Gajendragadkar, CJ, on an exhaustive
consideration of various Hindu Texts and the texts and
history of the Swaminarayan sect, came to the conclusion
that the Swaminarayan sect was not a religion, distinct and
separate from the Hindu Religion.
It is obvious that religion, undefined by the
Constitution, is incapable of precise judicial definition
either. In the background of the provisions of the
Constitution and the light shed by judicial precedent, we
may say religion is a matter of faith. It is a matter of
belief and doctrine. It concerns the conscience i.e. the
spirit of man. It must be capable of overt expression in
word and deed, such as, worship or ritual. So, religion is a
matter of belief and doctrine, concerning the human spirit,
expressed overtly in the form of ritual and worship. Some
religions are easily identifiable as religions, some are
easily identifiable as not religions. There are many in the
penumbral region which instinctively appear to some as
religion and to others as not religions. There is no formula
of general application. There is no knife-edge test.
Primarily, it is a question of the consciousness of the
community, how does the fraternity or sodality (if it is
permissible to use the word without confining it to Roman
Catholic groups) regard itself, how do others regard the
fraternity or sodality. A host of other circumstances may
have to be considered, such as, the origin and the history
of the community, the beliefs and the doctrines professed by
the community, the rituals observed by the community, what
the founder, if any, taught, what the founder was understood
by his followers to have taught, etc. In origin, the founder
may not have intended to found any religion at all. He may
have merely protested against some rituals and observances;
he may have disagreed with the interpretation of some
earlier religious tenets. What he said, what he preached and
what he taught, his protest, his dissent, his disagreement
might have developed into a religion in the course of time,
even during his life-time. He may be against religion
itself, yet, history and the perception of the community may
make a religion out of what was not intended to be a
religion and he may be hailed as the founder of a new
religion. There are the obvious examples of Buddhism and
Jainism and for that matter Christianity itself. Neither
Buddha nor Mahavira, nor Christ ever thought of founding a
new religion, yet three great religions bear their names.
If the word ‘religion’ is once explained, though with
some difficulty, the expression ‘religious denomination’ may
be defied
751
with less difficulty. As we mentioned earlier Mukherjea J,
borrowed the meaning of the word denomination from the
Oxford Dictionary and adopted it to define religious
denomination as “a collection of individuals classed
together under the same name, a religious sect or body
having a common faith and organisation and designated by a
distinctive name”. The followers of Ramanuja, the followers
of Madhwacharya, the followers of Vallabha, the Chishtia
Soofies have been found or assumed by the Court to be
religious denominations. It will be noticed that these sects
possessed no distinctive name except that of their founder-
teacher and had no special organisation except a vague,
loose-un-knit one. The really distinctive feature about each
one of these sects was a shared belief in the tenets taught
by the teacher-founder. We take care to mention here that
whatever the ordinary features of a religious denomination
may be considered to be, all are not of equal importance and
surely the common faith of the religious body is more
important than the other features. It is, perhaps, necessary
to say that judicial definitions are not statutory
definitions, they are mere explanations, every word of which
is not to be weighed in golden scales. Law has a tendency to
harden with the passage of time and judicial pronouncements
are made to assume the form of statutory pronouncements. So
soon as a word or expression occur in the statute is
judicially defined, the tendency is to try to interpret the
language employed by the judges in the judicial definition
as if it has been transformed into a statutory definition.
That is wrong. Always, words and expressions to be
interpreted are those employed in the statute and not those
used by judges for felicitous explanation. Judicial
definition, we repeat, is explanatory and not definitive.
One remark requires to be added here. Religious denomination
has not to owe allegiance to any parent religion. The entire
following of a religion may be no more than the religious
denomination. This may particularly be so in the case of
small religious groups or `developing’ religions, that is,
religions in the formative stage.
We may now consider whether Aurobindoism-if one may be
excused for using the word `Aurobindoism’ to describe what
Shri Aurobindo taught and practised and what he was
understood by his followers to have taught and practised-was
a religion and whether the followers of Shri Aurobindo could
be called a religious denomination.
Shri Aurobindo was a poet, a savant, a philosopher and
a mystic. Was he or was he not a religious teacher ?
752
The Encyclopaedia Brittanica (1978 Edition) describes
him as “seer, poet and Indian nationalist who originated the
philosophy of cosmic salvation through spiritual evolution,
a divine existence that will appear through the development
of the “agnostic man” to usher in a transcendant spiritual
age in which man and the universe are destined to become
divine”. The Encyclopaedia goes on to say, “he devoted
himself for the rest of his life solely to the development
of his unique philosophy. There (at Pondicherry) he founded
an ashrama (retreat) as an international cultural centre for
spiritual development, attracting students from all over the
world. The only requirement for entrance was a sincere wish
to develop spiritually.”
“According to Aurobindo’s theory of cosmic salvation,
the paths to union with Brahman are two-way streets, or
channels, Enlightment comes to man from above, while the
spirital mind (supermind) of man strives through logic
illumination to reach up-ward from below. When these two
forces blend in an individual, agnostic man is created. This
logic illumination transcends both reason and intuition and
eventually leads to the freeing of the individual from the
bonds of individuality and, by extension all mankind will
eventually achieve mukti (liberation)”.
“Thus, Aurobindo created a dialectic mode of salvation
not only for the individual but for all mankind. Energy of
sachidananda (“existence, thought, joy”) comes down from
Brahman (thesis) to meet energy from the supermind of man
striving upward toward spirituality (antithesis) and melds
in man to create a new spiritual superman (synthesis). From
these evolved divine beings, a divine universe also
evolved.”
Under the head `History of Hinduism’. Encyclopaedia
Brittanica again refers to Aurobindo and says :
“Another modern teacher whose doctrines have had some
influence outside India was Sri Aurobindo, who began his
career as a revolutionary. He withdrew from politics,
however, and settled in Pondicherry, then a French
possession. There he established an ashrama (a retreat) and
achieved a high reputation as a sage. His followers looked
on him as the first incarnate manifestation of super-beings
whose evolution he prophesied, and apprently he did not
discourage this belief. After his death, the leadership of
the Aurobindo Ashram was taken over by “the Mother”, Mme
Mira
753
Richard, a French-woman who had been one of his leading
disciples.”
The Encyclopaedia Brittanica refers to Aurobindo again
under the head `Idealism’ and says :
“Aurobindo, reinterpreting the Indian Idealistic
heritage in the light of his own Western education, rejected
the maya doctrine of illusion, replacing it with the concept
of evolution, aguring that the “illumination of individuals
will lead to the emergence of a divine community”. Aurobindo
founded the influential Pondicherry Ashram, a religious and
philosophical community, and headed it until his death.”
The Encyclopaedia of Philosophy (1972 Edition) says,
“Shri Aurobindo was an Indian metaphysician and
founder of new religious movement with head-quarters at
Pondicherry-The religious movement associated with him
has increased its following in India, and has made some
converts in the West………God must `descent’ into
human experience. This illumination of individual will
lead to the emergence of a divinised
community……………Aurobindo produced a synthesis
between older Indian religious ideas and the world
affirming attitudes of Christian theism.”
The Dictionary of Comparative Religion says of
Aurobindo :
“According to Aurobindo, there is a progressive
evolution of the divine being through matter to higher
spiritual forms, and the Aurobindo movement is held to
represent vanguard of this evolutionary process in our
own times. Aurobindo practised and taught an `integral
yoga’ in which meditative and spiritual exercises are
integrated with physical, cultural and intellectual
pursuits.”
Frederic Spiegelberg, in his book `Living Religions of
the World’ refers to Shri Aurobindo :
“We pass beyond specific religions to a synthetic
vision of the religious impulse itself, a vision
designed to embrace all previous and future history all
previous and future paths. Shri Aurobindo is a man
worshipped by hundreds of thousands and respected by
754
millions…………In his retreat at Pondicherry he is
less the philosopher of Hinduism than the philosopher
of religion in general, the voice of that which
comparative religion leaves undisputed.”
On the topic Religion, the Gazetteer of India,
published by the Govt. of India, has this to say :
“Shri Aurobindo gave new interpretations of the
vedas and The Vedanta, and in his Essays on the Gita,
he expounded what he called “the integral view of
life”. His great work, the Life Divine, is a summing up
of his philosophy of “the Descent of the Divine into
Matter”. The importance of Sri Aurobindo’s mission lies
in his attempt to explain the true methods of Yoga.”
It is clear from these extracts that the world and
India treated and respected Shri Aurobindo as a religious
teacher and the founder of a new religious movement whose
principal thesis was the evolution or transformation of
humanity into divinity through the practice of Integral
Yoga. One may or may not accept Shri Aurobindo’s thesis or
teaching, but, without doubt, it was unique ; without doubt,
it was novel; without doubt, it had never been so taught
before. Shri Aurobindo first conceived the theory of Ascent
and Descent, involution and evolution. He was the first
expositor of the Integral Yoga. He expressly professed to
depart from the Yoga of the Gita and dissented from the Maya
Vada. Pedestrian minds like ours may not understand the
niceties of the metaphysical exercises involved. We do not
desire to enter into any polemics over Shri Aurobindo’s
teachings as it is not within the judicial province to do so
except to the limited extent of finding out whether his
teachings have the necessary spiritual content to qualify as
religious doctrine and how his followers understood those
teachings. So, we refrain from quoting Shri Aurobindo. But
this fact stands out prominently that whatever else he was,
he truly was a religious teacher and taught and was
understood to have taught new religious doctrine and
practice. I fail to see why `Aurobindoism’ cannot be
classified, if not as a new religion, as a new sect of
Hinduism and why the followers of Shri Aurobindo cannot be
termed a religious denomination.
755
Shri Aurobindo, of course, disclaimed that he was
founding a religion. No great religious teacher ever claimed
that he was founding a new religion or a new school of
religious thought. The question is not whether Shri
Aurobindo refused to claim or denied that he was founding a
new religion or a new school of religious thought but
whether his disciples and the community thought so. There is
no doubt that they did, not only his disciples and
followers, but religious leaders all the world over and of
all faiths.
If the followers of Shri Aurobindo constitute a
`religious denomination’, as, to my mind, they undoubtedly
do, the members of Shri Aurobindo Society are certainly a
distinct and identifiable section of the `religious
denomination’. The members of the society are followers and
disciples of Shri Aurobindo. The society was formed to
preach and propagate the beliefs and ideals of Shri
Aurobindo. The primary object of the society was “To make
known to the members of the public in general the aims and
ideals of Shri Aurobindo and the Mother, their system of
Integral Yoga and to work for its fulfilment in all possible
ways and for the attainment of a spiritualised society as
envisaged by Shri Aurobindo.” It is nobody’s case that this
is not the principal object of the society or that it is
only a facade for other activities. However, it was argued
that the Society had represented itself as, `a non-
political, non-religious organisation’ and claimed exemption
from income tax on the ground that it was engaged in
educational, cultural and scientific research. If the
society consists of the disciples and followers of Sri
Aurobindo, if its primary object is to profess, practise and
propagate the system of Integral Yoga, and, if, therefore,
it is a section of a religious denomination, the
circumstance that it is engaged in several secular
activities and has represented itself to be a non-religious
organisation for certain purposes cannot detract from the
fact that it is a section of a religious denomination within
the meaning of Art. 26 Therefore, we must hold, the
Aurobindo Society is a section of a religious denomination
within the meaning of the expression in Art. 26 of the
Constitution.
But, the question is has the Fundamental Right
guaranteed by Art. 26 been infringed by the Auroville
(Emergency Provisions) Act, 1980. We have to notice straight
away that the Act did not take away or purport to take away
the management of the Shri Aurobindo Society. What it did or
purported to do was “to provide for the
756
taking over, in the public interest, of the management of
Auroville for a limited period and for matters connected
therewith or incidental thereto.” The long preamble says,
“Whereas Shri Aurobindo Society, a non-
governmental organisation had been a channel of funds
for the setting up of a cultural township known as
Auroville, where people of different countries are
expected to live together in harmony in one community
and are expected to engage in cultural, educational,
scientific and other pursuits aiming at human unity.”
x x x
“AND WHEREAS Auroville was developed as a cultural
township with the aid of funds received from different
organisations in and outside India as also from the
substantial grants received from the Central and State
Governments;
AND WHEREAS pursuant to the complaints received
with regard to the misuse of funds by Sri Aurobindo
Society, a committee was set up under the chairmanship
of the Lieutenant-Governor of Pondicherry with
representatives of the Government of Tamil Nadu and of
the Ministry of Home Affairs in the Central Government,
and the said committees had, after a detailed scrutiny,
of the accounts of Shri Aurobindo Society, found
instances of serious irregularities in the management
of the said Society, misutilisation of its funds and
their diversion to other purposes ;
AND WHEREAS in view of the serious difficulties
which have arisen with regard to the management of
Auroville, it is necessary to take over, for a limited
period, the management, thereof and any delay in taking
over the management of Auroville would be highly
detrimental to the interests and objectives of
Auroville;
The long preamble itself explains what Auroville is. S.
3(c) of the Act defines Auroville as meaning “so much of the
undertakings as form part of, or are relatable to, the
township which is known as Auroville and the charter of
which proclaimed by the `Mother’ on the 23rd day of
February, 1968”.
757
Now, the idea of Auroville was conceived by Madame M.
Alfasse, affectionately and respectfully known to the
disciples and followers of Shri Aurobindo as the Mother. The
idea of a cultural township which would promote
international understanding and world peace had great appeal
to the Government of India and the United Nations
Educational, Scientific and Cultural Organisation and they
extended their support to the project. But, things turned
out to be not so smooth-sailing after all. There was
dissension among the members of the Shri Aurobindo Society.
Things came to such a pass that the impugned Act was
necessitated. Misra J. has narrated the facts leading to the
intervention of parliament. Parliament concerned itself with
the management of Auroville only and with no other activity
of the Shri Aurovindo Society, including `its affairs in
matters of religion’. In fact, section 4(2) makes it
explicit that, except for matters relating to the management
of Auroville, the provisions of the West Bengal Societies
Registration Act, 1961, under which the Society was
registered, shall continue to apply to the Society in the
same manner as before. Since the only activity of the
Society which was touched by the Act was the management of
Auroville, the question arises whether Auroville is an
institution established and maintained for religious and
charitable purposes and whether its management of Auroville
is `a matter of religion’. Auroville is a township and not a
place of worship. It is a township dedicated, not to the
practice and propagation of any religious doctrine but to
promote international understanding and world peace, surely,
a secular and not a religious activity. The highest that can
be said in favour of Auroville being a religious institution
or its management being a religious matter, is that it was
conceived by the Mother and shaped and sculpted by Shri
Aurobindo’s disciples and followers in the pursuit of one of
the ideas and ideals of Shri Aurobindo, a great religious
teacher. On the other hand, the ideal itself, that is, the
promotion of international understanding and world peace is
by no means a religious ideal and it was because of the
nature of the ideal that the Government of India and the
UNESCO adopted the project. Shri Aurobindo himself was not a
mere religious teacher. He was a visionary, a humanist and a
nationalist who had blossomed into an internationalist. It
appears, therefore, that Auroville, though the child of the
Mother and though nurtured by the devotees of Shri
Aurobindo, has an individuality, distinctly secular, of its
own. The management of the International, cultural township
of Auroville is not, in our opinion, a matter of religion.
We have mentioned earlier that laws regulating or
restricting any economic, financial, political or other
secular
758
activity which may be associated with religious practice are
excluded from the guarantee of freedom of conscience and the
right freely to profess, practise and propagate religion. We
have also pointed out that the administration of the
property of a religious denomination is different from the
right of the religious denomination to manage its own
affairs in matters of religion and that laws may be made
which regulate the right to administer the property of a
religious denomination. Questions merely relating to
administration of properties belonging to a religious group
or institution are not matters of religion to which clause
(b) of Art. 26 applies. It has been so decided in the Shirur
Mutt case as well as other cases following it. We are,
therefore, of the view that the Auroville Emergency
Provisions Act which provides for the taking over the
management of Auroville for a limited period does not offend
the rights guaranteed by Arts. 25 and 26 of the
Constitution.
A passing reference was also made in the course of
argument to Arts 29 and 30 of the Constitution, and it was
said that the rights guaranteed by those Articles were also
infringed. We are entirely at a loss to understand how the
rights guaranteed by Arts. 29 and 30 can be said to have
been infringed by the Auroville Emergency Provisions Act. No
section of citizens having a culture of its own has been
denied the right to conserve that culture and no religious
minority has been denied the right to establish and to
administer an educational institution of its choice.
On the several other questions argued before us I
accept the conclusion of Misra J. The Writ Petitions are
accordingly dismissed but in the circumstances there will be
no order regarding costs.
MISRA J. The first two petitions under Article 32 of
the Constitution of India filed in this Court and the third
under Article 226 of the Constitution filed in the Calcutta
High Court and later on transferred to this Court, seek to
challenge the vires of the Auroville (Emergency Provisions)
Ordinance, 1980 (Ordinance No. 19 of 1980), later on
replaced by the Auroville (Emergency Provisions) Act, 1980
(Act No. 59 of 1980). The fourth is an appeal by special
leave against the order of the Division Bench of the
Calcutta High Court dated 21st of November, 1980 vacating
the interim order passed by a Single Judge in the writ
petition. All these cases raise common questions of
constitutional importance and, therefore, they were posted
before the Constitution Bench.
759
Man as a rational being, endowed with a sense of
freedom and responsibility, does not remain satisfied with
his material existence. He wants to know and realise the
meaning of his life. It is this perennial urge in man that
inspires him to indulge in great creative activities. He
creates great cultures and civilisations and tries to
realise the meaning and value of life in and through them.
To the biologist life is indefinable. It cannot be
defined in terms of any things. The biologists have,
however, explained and illustrated characteristics of life.
But no formulation of the nature and characteristics of life
has won general acceptance. It means that the insignia of
life have not as yet been comprehended fully. Life has not
been viewed in its proper perspective. It still seems to be
a riddle, a mystery.
Life appears to be a mystery not only to the scientists
but also to the philosophers. Philosophers may be said to be
rather more conscious of the difficulties that the concept
of life involves than the scientists. A philosopher is also
aware of the fact that unless one is able to fathom the
depths of life and has a full comprehension of its nature,
one cannot understand and determine the nature of human
personality and its destiny.
Similar other deeper and ultimate problems of life have
been agitating the mind of seers and philosophers viz.,
Where did the world come from ? Was it created or evolved ?
Is there any unity in diversity ? Each thinker tried to
solve the ultimate problems in his own way. By and large
they believed there is a real creative force behind the
process of the world. Some called it as God, the others as
ultimate truth, the conscience. According to some the
objects, if left to themselves, would remain motionless and
for their initial movement they must have required some
external agency which might have set the universal ball
rolling.
In early ages when man knew little about the laws of
nature, he attributed all changes in nature to certain
agencies, which due partly to his egocentric way of viewing
things and partly to his conscious or sub-conscious
awareness of the supremacy of man in the whole hierarchy of
things in nature, were conceived after the image of man.
Later on, in view of the supremacy of kings in all walks of
life and their services to society, these unseen mighty
agencies were fashioned specifically after them. Since God
was conceived to be the supreme among such agencies. He
naturally was sought to be represented by the supreme among
kings. Thus anthropomorphism, i.e. the idea of
760
God in terms of human figure is partly due to ignorance and
partly due to the influence of uncommon persons in the
society.
During 18th and 19th centuries the entire scientific
thought sought to explain the universe mechanically and
strived to do away with God completely. If it allowed
anything like God to enter its universe at all, it did so
only after transforming Him into a mechanical principle.
Later on with the formulation of the theory of
relativity this isolationist view of things has given way to
one of mutual relatedness of each object to every one else.
Recognition of the immense potentiality of dynamism inherent
in the mutual relatedness of objects in the universe has
precluded the necessity of an extra-cosmic or metaphysical
principle, such as the God of Aristotle who was supposed to
have existed prior to the beginning of the world, and given
it the first stroke of movement resulting in continuous
motion ever since.
Thus, the idea of God has led to more or less its
adjustment to fresh acquisition of knowledge in each epoch.
A view of God which fails to do that tends to become
discarded in favour of a new one. If it fails to keep pace
with the expanding horizon of knowledge, it begins to lose
its ground and shrink into a mere cult of only historical
importance, it becomes fossilised and is liable to crumble
at the vital touch of the present.
Our scriptures proclaimed from the very start that
there is only one reality in the world which is described in
different ways :
“Ekam Sad Wipra Bahuda Vadanti.”
One of such Indian sages and philosophers was Sri
Aurobindo. He was born on August 15, 1872 in Calcutta. When
he was barely seven years old he was taken to England for
education. In view of his amazing ability in learning
languages he was offered scholarship to join Kings College,
Cambridge. There he distinguished himself by his
extraordinary ability to compose Greek and Latin verses. He
is said to have won all the prizes for the year in Kings
College for Greek and Latin verses. He sailed for India in
1893 and settled down at Baroda. He served in several
capacities in Baroda State, sometimes as an administrator
and at others as Professor of French and English. During his
stay there he learnt Sanskrit.
761
The years from 1902 to 1910 were stormy ones for Sri
Aurobindo as he embarked on a course of action to free India
from British rule. As a result of his political activities
and revolutionary literary efforts he was sent to jail in
1908. Two years later he fled from British India to refuge
in the French Mandate of Pondicherry (modern Pondicherry) in
South-East India. He took a decision to give up all
political activities so as to concentrate himself with the
life of meditation and yoga at Pondicherry.
Madam M. Alfassa, a French Lady, who came to be known
as ‘The Mother’ became a disciple of Sri Aurobindo. Very
soon more and more disciples came to join him from various
parts of India and abroad and thus ‘the Ashram’ came into
being. The disciples and devoted followers of Sri Aurobindo
and the Mother with a view to propagate and practise the
ideals and beliefs of Sri Aurobindo formed a Society called
Sri Aurobindo Society in the year 1960. The petitioner
Society at all material times was and is still a Society
duly registered under the provisions of the West Bengal
Societies Registration Act, 1961. This Society is completely
distinct from Aurobindo Ashram in Pondicherry. The Society
was established and registered for the purpose of carrying
out inter alia the following objects in and outside India:
(i) To make known to the members of the public in
general the aims and ideals of Sri Aurobindo and
the Mother, their system of integral yoga and to
work for its fulfilment in all possible ways and
for the attainment of a spiritualised society as
envisaged by Sri Aurobindo;
(ii) To Train selected students and teachers from all
over the world in the integral system or education
i.e., spiritual, psychic, mental, vital and
physical;
(iii)To help in cash and/or kind by way of donations,
gifts, subsidies and in also other ways in the all
round development of Sri Aurobindo International
Centre of Education and to help similar centres of
education;
(iv) To establish study groups, libraries, Ashrams and
other institutions, centres, branches and
societies for study and practice of integral yoga
of Sri Aurobindo and the Mother and to help the
existing ones;
762
(v) To establish centres of physical culture, sports
and volunteer organisations for inculcating and
promoting the spirit of discipline, co-operation
and service to others and to undertake activities
for promotion of health and bodily perfection:
(vi) To organise, encourage, promote and assist in the
study, research and pursuit of science, literature
and fine arts;
(vii)To enquire, purchase, build, construct or take on
lease or in exchange or hire any movable or
immovable property, or gifts or privileges; and
(viii)Generally to do all other acts, deeds and things
necessary, conductive, suitable or incidental to
or for the attainment of the above objects or any
of them or part of them.
The management of the Society vested in its Executive
Committee. Rules and regulations have been duly framed for
the management of the Society and also for safe custody and
protection of its assets, properties and funds.
Sri Aurobindo Society (hereinafter referred to as ‘the
Society’) preaches and propagates the ideals and teachings
of Sri Aurobindo inter alia through its numerous centres
scattered throughout India by way of weekly meetings of its
members.
The Mother as the founder-president also conceived of a
project of setting up a cultural township known as
‘Auroville’ where people of different countries are expected
to engage in cultural, educational and scientific and other
pursuits aiming at human unity. The Society has been a
channel of funds for setting up the cultural township known
as Auroville.
At the initiative of the Government of India, the
United Nations Educational, Scientific and Cultural
Organisation being of the opinion that the Auroville project
would contribute to international understanding and
promotion of peace sponsored the project by proposing a
resolution to this effect at its General Conference in 1966.
This resolution was unanimously adopted at this Conference.
By a further resolution passed in 1961 the UNESCO
763
invited its member States and international non-governmental
organisations to participate in the development of Auroville
as an international cultural township to bring together the
values of different cultures and civilisations in a
harmonious environment with integrated living standards
which correspond to man’s physical and spiritual needs. 1970
UNESCO had directed its Director-General to take such steps
as may be feasible, within the budgetary provisions to
promote the development of Auroville as an important
international cultural programme. Sri Aurobindo Society
received large funds in the shape of grants from different
organisations in India and abroad for development of the
township. The assistance included contributions from the
State Governments of the value of Rs 66.50 lakhs and the
Central Government of the value of Rs. 26.14 lakhs.
After the death of the Mother on 17th of November 1973
a number of problems of varying nature affecting the smooth
running of the project cropped up. The Government of India
on receiving complaints about mismanagement of the project
and misuse of funds by Sri Aurobindo Society set up a
committee under the chairmanship of the Governor of
Pondicherry with representatives of the Government of Tamil
Nadu and of the Ministry of Home Affairs in the Central
Government to look into the matter. The committee made a
detailed scrutiny of the accounts of Sri Aurobindo Society
relating to Auroville and found instances of serious
irregularities in the management of the Society,
misutilisation of its funds and their diversion to other
purposes. Further, various other serious difficulties had
arisen plaguing the management of Auroville and rendering
thereby any further growth of the township almost impossible
in the circumstances that taking over the management of
Auroville became imperative to ensure growth of the township
in tune with its objectives.
Keeping in view the international character of the
project and considering the government’s involvement in
actively sponsoring the project through UNESCO, the growth
and management of the project had become the primary
responsibility of the Government of India. The ideals of the
project formed India’s highest aspirations, which could not
be allowed to be defeated or frustrated. Sri Aurobindo
Society had lost complete control over the situation and the
members of the Auroville approached the Government of India
to give protection against oppression and victimisation at
the hands of the said Society. There were internal quarrels
between the various factions of Sri Aurobindo Society. There
have also been instances
764
of law and order situation. Financial management of the
project has not been sound and several instances of
mismanagement, diversion of funds have been revealed. A
large sum of money was given by Sri Aurobindo Society to
AURO Construction-an agency whose status is not at all
defined, whose functions and capabilities for taking up
large construction works also had not been made known. The
Government in the circumstances could not be a silent
spectator to the mismanagement of the project and intereine
quarrels amongst its members, which if not checked could
lead to the destruction of the project so nobly conceived.
The Government, therefore, decided to issue a Presidential
ordinance. After the filing of the writ petition the
ordinance has now been replaced by the Auroville (Emergency
Provisions) Act, 1980.
The constitutional validity of the Act has been
challenged on four grounds:
1. Parliament has no legislative competence to enact
the impugned statute.
2. The impugned Act infringes Articles 25, 26, 29 and
30 of the Constitution.
3. The impugned Act is violative of Article 14 of the
Constitution; and
4. The Act was mala fide.
We take up the first ground first. According to Mr.
Soli Sorabjee, counsel for petitioners, the Auroville
(Emergency Provisions) Act, 1980, hereinafter referred to as
the impugned Act, is a law relating to a matter in the State
Legislative List and is, therefore, beyond the legislative
competence of Parliament, hence unconstitutional and void.
The impugned Act, according to him, provides for taking over
the management of Auroville for a limited period from the
Society. The management of Auroville was prior to the
impugned Act vested in the Governing Body/Board of Trustees
of the Society under the Provisions of the West Bengal
Societies Registration Act and memorandum and rules and
regulations of the Society, as is evident from section 5(5)
of the impugned Act itself. The society was registered under
the Societies Registration Act, 1860 but after the
enforcement of the West Bengal Societies Registration Act,
1961 the Society was deemed to be
765
registered under that Act. The West Bengal Societies
Registration Act (for short ‘the West Bengal Act‘) contains
specific provisions to deal with the Society adequately.
Sections 22 and 23 of the West Bengal Act empower the
Registrar of the Societies to call for an information or
explanation relating to the management of the affairs of any
society registered thereunder and also to investigate into
the affairs of the society, if there were circumstances
suggesting that the society was guilty of mismanagement of
its affairs or of any unlawful fact. The Registrar has also
the power to prosecute and punish those persons found guilty
of mismanagement. Under section 26 of the Act a society is
also liable to be dissolved by the order of the Registrar on
the ground inter alia of mismanagement. Obviously,
therefore, the West Bengal Act contains in built self
contained provisions for dealing with the mismanagement of
the registered societies.
The West Bengal Act is a legislation exclusively
relatable to Entry 32 of List II of Seventh Schedule. The
provisions of the West Bengal Act apply to the Society as is
evident from section 2(f) and (g) of the impugned Act.
Section 4(2) of the impugned Act, however, excludes the
application of certain provisions of the West Bengal Act to
the Society and declares that the provisions of the West
Bengal Act will continue to apply to the Society subject
however, to such exclusions. Section 8(2) provides that on
relinquishment of management by the Central Government the
management of the property of the Society forming part or
relatable to Auroville shall vest in the Governing Body of
the Society and shall be carried on in accordance with the
provisions of the West Bengal Act. Section 11 of the
impugned Act gives over-riding effect to the impugned Act
over all other Acts (including the West Bengal Act) and
instruments thereunder. Therefore, the object and purpose of
the impugned Act is to take away the management of Auroville
from the Society and to bring it under the management of the
Central Government under the provisions of the impugned Act.
This process necessarily involves during the takeover period
the suspension of the provisions of the West Bengal Act and
the memorandum and rules in so far as they are applicable to
the management of the Auroville by the Society.
Consequently, the impugned Act for a limited period
abrogates, suspends or temporarily repeals certain
provisions of the West Bengal Act or in other words the
State Act is pro tanto overborne by the Central Act.
Therefore, the question arises whether Parliament has
legislative competence to repeal, permanently or
temporarily, any provisions of the West
766
Bengal Act which is a law made by the State Legislature in
the exercise of its exclusive legislative competence under
Entry 32 of the State Legislative List.
It was contended for the petitioners that the
legislature has no authority to repeal statutes which it
could not directly enact. The power to repeal or alter the
statute is co-extensive with the power of direct legislation
of a legislative body. In support of this contention
reliance was placed on the Privy Council decision in
Attorney General for Ontario v. Attorney General for the
Dominion(1). The Parliament has no competence to enact the
West Bengal Act, and therefore it had no power to repeal the
provisions of the West Bengal Act by the impugned Act.
Inasmuch as the Parliament has sought to repeal or override
certain provisions of the West Bengal Act which are
referable to Entry 32 in List II, and are exclusively within
the competence of the State Legislature, the impugned Act by
Parliament is without legislative competence and hence void.
It was further contended for the petitioners that the
proper approach to the question is to see if the impugned
legislation is covered by any of the entries in list II of
the Seventh Schedule. It is not at all necessary to probe
into the question as to whether the impugned legislation can
be covered by any of the entries of List I or List III of
the Seventh Schedule. Reliance was placed on the Union of
India v. H.S. Dhillon(2) wherein the following proposition
was laid down :
“It seems to us that the best way of dealing with
the question of the validity of the impugned Act and
with the contentions of the parties is to ask ourselves
two questions, first, is the impugned Act legislation
with respect to entry 49 List II ? and secondly, if it
is not, it is beyond the legislative competence of
Parliament ?
The positive case of the petitioners is that the
subject matter of the impugned Act is covered by entry 32,
List II of the Seventh Schedule. The Solicitor General for
the Union of India, however, tried to bring the impugned Act
within the four corners of item 44, List I of the Seventh
Schedule of the Constitution.
It may be pointed out at the very outset that the
function of the Lists is not to confer powers. They merely
demarcate the
767
legislative fields. The entries in the three Lists are only
legislative heads or fields of legislation and the power to
legislate is given to appropriate legislature by Articles
245 and 248 of the Constitution. It would be appropriate at
this stage to read entry 32, List II and entry 44, List I of
the Seventh Schedule :
Entry 32, List II
“Incorporation, regulation and winding up of
corporations, other than those specified in List I, and
universities ; unincorporated trading, literary,
scientific, religious and other societies and
associations; co-operative societies.”
Entry 44, List I:
“Incorporation, regulation and winding up of
corporations, whether trading or not, with objects not
confined to one State, but not including universities.”
For the petitioners, however, it was urged that the
registration of the Society under the West Bengal Act does
not make it a corporation. Halsbury’s Laws of England, 3rd
Edn., Vol. 9, p. 4, deals with corporations in the following
terms:
“A corporation aggregate has been defined as a
collection of individuals united into one body under a
special denomination, having perpetual succession under
an artificial form, and vested by the policy of the law
with the capacity of acting in several respects as an
individual, particularly of taking and granting
property, of contracting obligations and of suing and
being sued, of enjoying privileges and immunities in
common, and of exercising a variety of political
rights, more or less extensive, according to the design
of the institution or the powers conferred upon it,
either at the time of the creation or at any subsequent
period of its existence.”
A corporation has, therefore, only one capacity,
namely, the corporate capacity. On an analysis it would
appear that the essential elements in the legal concept of a
corporation are: (1) a continuous identity, i.e., the
original member or members or his or their successors are
one, (2) the persons to be incorporated, (3) the name by
which the persons are incorporated, (4) a place, and
768
(5) words sufficient in law to show incorporation. In law
the individual incorporators are members of which it is
composed or something wholly different from the corporation
itself, for a corporation is a legal person just as much as
an individual. A corporation aggregate can express its will
by deed under a common seal.
The Society was registered, as stated earlier, under
the Societies Registration Act and later on was deemed to be
registered under the West Bengal Societies Registration Act,
1961. Whether such a registered society can be held to be a
corporation in the light of the functions of a corporation
quoted above ? In the Board of Trustees, Ayurvedic and Unani
Tibia College v. The State of Delhi and Ors.(1) it was held
that a society registered under the Societies Registration
Act may have the characteristics which are analogous to some
of the characteristics of a corporation but is not a
corporation. As it is not incorporated and remains an
unincorporated society, therefore, it must come under the
second part of entry 32 of List II. Reliance was placed in
this case on Taff Vale Railway v. Amalgamated Society of
Servants.(2) The petitioners also rely on Katra Educational
Society v. State of Uttar Pradesh and Ors.(3) In that case
also the appellant was a society registered under the
Societies Registration Act 21 of 1860, which conducts an
educational institution styled ‘Dwarka Prasad Girls
Intermediate College’ at Allahabad. The management of the
affairs of the society was entrusted by the memorandum of
association to an executive committee whose membership was
confined to the members of the society. The Intermediate
Education Act was subsequently passed by the State
Legislature. Section 8 of the Act authorised the State
Government to promulgate regulations in respect of matters
covered by sections 16A to 161 of the Act. The Regional
Inspector of Girls Schools called upon the society to submit
and get approved a scheme of administration of the
institution managed by it. The sections were later on
modified by subsequent amendment. The society challenged the
Act on the ground that it was beyond the legislative
competence of the State legislature inasmuch as in substance
it sought to substitute the provisions of the Societies
Registration Act, 1860, a field of legislation which was
exclusively within the competence of Parliament and in any
case the Act in so far as it affected the powers of the
trustees of charitable institutions
769
could not be enacted without conforming to the requirements
of Article 254. The contention was repelled and it was held
by this Court, relying on the Board of Trustees, Ayurvedic
and Unani Tibia College v. The State of Delhi (supra) that
by registration under the Societies Registration Act a
society does not acquire corporate status. It cannot also be
said that the pith and substance of the Act relates to
charities or charitable institutions or to trusts or
trustees. It was further held that the true nature and
character of the Act falls within the express legislative
power conferred by entry 11 of List II and merely because it
incidentally trenches upon or affects a charitable
institution or the powers of the trustees of the
institution, it will not on that account be beyond the
legislative authority of the State Legislature.
As the Society is an unincorporated society, says the
counsel for petitioners, the impugned Act does not and
cannot fall under entry 44 of List I of the Seventh Schedule
and it would fall under entry 32 of List II of the Seventh
Schedule and once it is covered by entry 32 of List II, it
is not at all necessary to examine whether it may or it may
not fall in other two lists of the schedule.
On the other hand, the stand of the Union of India as
well as of the interveners, is that the first part of entry
32 of List II is not attracted as the subject matter of the
impugned Act is not incorporation, regulation or winding up
of a corporation. It has only taken over the management of
Auroville from the Society for a short period in respect of
the property. Auroville, of which the management has been
taken over by the Central Government under the impugned Act
means so much of the undertaking as form part of or
relatable to the cultural township which is known as
Auroville and the charter of which was proclaimed by the
Mother on 25th day of February, 1968. The property of
Auroville is situated not in West Bengal but in Pondicherry
in Tamil Nadu. The fact that the Society, which was
registered under the West Bengal Act, has been a channel of
funds for the setting up of the cultural township of
Auroville and has been managing some aspects of Auroville,
does not bring Auroville under the domain of the West Bengal
Act. The right of management of property is itself a
property right.
The Solicitor General also tried to bring the subject
matter of the impugned legislation under various other
entries of List I or List III of the Seventh Schedule viz.,
entries 10, 20, 41 and 42 of List III and entry 10 of List
I. But it is not necessary for us to examine
770
whether the subject matter of the impugned legislation falls
under any of the entries of List I or List III if once we
hold that the subject matter does not fall within the ambit
of any of the entries of List II. Even if the subject matter
of the impugned legislation is not covered by any specific
entry of List I or List III, it will be covered by the
residuary entry 97 of List I.
In our opinion the impugned Act even incidentally does
not trench upon the field covered by the West Bengal Act as
it is in no way related to constitution, regulation and
winding up of the Society In R.C. Cooper v. Union(1) it was
laid down that a law relating to the business of a
corporation is not a law with respect to regulation of a
corporation.
Having heard the counsel for the parties, our
considered opinion is that the subject matter of the
impugned Act is not covered by entry 32 of List II of the
Seventh Schedule. Even if the subject matter of the impugned
Act is not covered by any specific entry of List I or III of
the Seventh Schedule of the Constitution it would in any
case be covered by the residuary entry 97 of List I. The
Parliament, therefore, had the legislative competence to
enact the impugned Act.
This leads us to the second ground of attack, namely,
the impugned Act is violative of Articles 25, 26, 29 and 30
of the Constitution.
Article 25(1) confers freedom of conscience and the
right freely to profess, practise and propagate religion. Of
course, this right is subject to public order, morality and
health and to the other Articles of Part III of the
Constitution. Sub-clause (2) of this Article, however,
provides that 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.
771
Article 26 confers on every religious denomination or
any section thereof, subject to public order, morality and
health, 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.
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 defined 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:
tarko pratisth,srutyo vibhinna
neko risiyasya matan pramanam
dharmaya tatwan nihitan guhayan
mahajano jein gatah sa pantha
Mahabharta-Aranyakaparvan 313.117.
(Formal logic is vascillating. Srutis are contradict
ory. There is no single rishi whose opinion is final.
The 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., 36 A,
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.
772
‘Religion’ has reference to one’s views of his
relations to his Creator and to the obligations they impose
of re-verence for his being and character, and of obedience
to his will.
The word ‘religion’ in the 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. Tn such sense we
suppose there is no one who will admit that he is 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.
‘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 as object of
worship, love and obedience; right feeling toward God, as
highly apprehended.
‘Religion’ means the services 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: (I) 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 the term, “a religious
purpose’, as used in the constitutional provision exempting
from taxation property used for religious purposes, means
773
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 com mon 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
obdience 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 his 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.”
These terms have also been judicially considered in The
Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur MUtt(1) where in
the following proposition of law have been laid down:
(1) Religion means “a system of beliefs or doctrines
which are regarded by those who profess that
religion as conducive to their spiritual well-
being”.
(2) A religion is not merely an opinion, doctrine or
belief. It has its outward expression in acts as
well.
(3) Religion need not be theistic.
(4) “Religious denomination” means a religious sect or
body having a common faith and organisation and
designated by a distinctive name.
(5) A law which takes away the rights of
administration from the hands of a religious
denomination altogether
774
and vests in another authority would amount to
violation of the right guaranteed under clause (d)
of Art. 26.”
The aforesaid propositions have been consistently
followed in later cases including The Durgah Committee,
Ajmer & Anr. v. Syed Hussain Ali & Ors(1) and can be
regarded as well settled.
The words “religious denomination” in Article 26 of the
Constitution must take their colour from the word ‘religion’
and if this be so, the expression “religious denomination”
must also satisfy three conditions:
(1) It must be a collection of individuals who have a
system of beliefs or doctrines which they regard
as conducive to their spiritual well-being, that
is, a common faith;
(2) common organisation; and
(3) designation by a distinctive name.
In view of the propositions laid down by the Court in
the aforesaid reported cases we have to examine the
teachings of Sri Aurobindo to see whether they constitute a
religion. It will be appropriate at this stage to succintly
deal with the teaching of Sri Aurobindo.
According to Sri Aurobindo there is a divine
consciousness pervading the whole universe. A portion of
this consciousness by a process. Of involution through
various planes has finally resulted in the formation of the
physical world, namely the stars, the planets, the earth and
so on. Then came the reverse process of evolution i e., from
stone to plant, from plant to animal, from animal to man or
in other words from matter to life, from life to mind and so
on. This evolution will not stop with man who is only a
transitional species. The evolution would go further
transforming man into superman and the mind into supermind.
The superman according to Sri Aurobindo would be totally
different from man as man from animal and animal from plant.
In this transformation back to all prevading divine
consciousness in which man would become superman, man would
lose his present character of body, vital and mind. His body
would become a body of light, his vital a vital of light and
his mind a mind of light.
775
This transformation, or evolution of man into superman
is A bound to take place but in the course of thousands of
years. This process, however, according to Sri Aurobindo can
be accelerated by the practice of integral yoga. His theory
of this transformation consists of two aspects:
(a) An inner ascent of the consciousness to the
Divine.
(b) A descent of Divine consciousness in the mind,
vital and body.
The distinctive feature of Sri Aurobindo’s yoga is that
it is universal. Any one born in any part of the world, born
of parents professing any religion can accept his yoga. In
short, he originated the philosophy of cosmic salvation
through spiritual evolution. Divine existence that will
appear through the development of the agnostic man will
usher into a transcendental spiritual age in which man and
universe are destined to become divine. D
Thus, according to Sri Aurobindo’s theory of cosmic
salvation the paths of union with Brahman are two way
streets or channels. Enlightenment comes to man from above
while the spiritual mind (supermind) of man strives through
yogic illumination to reach upwards from below. When these
two forces blend in an individual agnostic man is created.
This yogic illumination transcends both reason and intuition
and eventually leads to the freeing of the individual from
the hands of individuality and by exclusion of all mankind,
will eventually achieve Mukti or liberation. Sri Aurobindo
created a dialectic mode of salvation not only for
individual but for all mankind. Energy or Sachidananda
(existence, consciousness and joy) comes down from Brahma to
meet energy from the supermind of man striving upwards
towards his spirituality (antithesis) and melts in man to
create a new spiritual superman (synthesis). From these
divine beings a divine universe is also evolved.
The Divine, though one, has two aspects-one is static
and the other dynamic. The dynamic side of the Divine is the
energy or the creative side. People in the past realised
only the static aspect of the Divine and did not know much
of the dynamic side as it is much more difficult to realise
it. For this reason, the purpose of the creation was not
understood by them and they declared the world to be futile
and deceptive. That means either the Divine was unable to
make a perfect world and He had Do purpose in the creation
or
776
man has not been able to understand the same. Sri
Aurobindo’s yoga gives the full experience of both the
aspects of the Divine, that is why he calls his Yoga the
Integral Yoga or the Perfect Yoga. Sri Aurobindo says the
Divine is real and His creation is bound to be real. He has
shown to the world the purpose of the creation and has
declared that the world is still in an imperfect condition
passing through the transitory Period towards its
perfection.
Man is a creature of this world and he cannot know much
of things other than this world. He has, however, a capacity
in himself to develop to the next stage of evolution because
Nature cannot stop with imperfect results and the present
humanity must evolve further till the final perfection is
obtained.
We look at things and happenings from the oufer
surface, having no knowledge whatsoever of the real causes
and effects, the different forces and influences of the
subtle worlds working behind them. We can see and feel only
the results on the material plane and nothing more. Our
senses have a very limited scope and they can give us the
knowledge of the things which can only materialise. But in
fact that is not all that we are. We have another part in
ourselves which is veiled by the external consciousness and
we call that as our soul-the spark of divinity within; which
is one everywhere-the true self.
As our sense give us the knowledge of the external
things by directing our consciousness outwardly, in the same
way if we can direct our consciousness inwardly and rise
into the inner consciousness, we can know the things of the
higher worlds and go beyond the limitation of our physical
sense, then only can we have the true knowledge of this
world and the worlds beyond and that practice is called
‘Yoga’.
The meaning of the word. ‘Yoga’ is to join-join our
external consciousness with our true self.
According to Sri Aurobindo, humanity is under the sway
of dark and ignorant forces and that is the reason for human
sufferings, disease and death-all the signs of imperfection.
It is clear that man has to progress towards a Light which
brings knowledge, power, happiness! love, beauty and even
physical immortality. The Divine is the essence of the whole
universe and to realise and possess Him should be the
supreme aim of human life. To acquire all the qualities of
the Divine is the final purpose of Nature’s evolution.
777
The soul progresses by gathering experience in the ordinary
life but A it is a very long, slow and devious process from
birth to birth. Yoga hastens the soul’s development. The
progress that can be made in any lives is made in a few
years by the help of Yoga. The Yoga of Sri Aurobindo is
called the ‘Integral Yoga’ or the ‘Supermental Yoga’. The
Yogas of the past were only of ascent to the Spirit. Sri
Aurobindo’s Yoga is both of ascent and descent. One can
realise the Divine in consciousness by the old Yogas but
cannot establish the Divine on earth in a collective no less
than in an individual physical life. In the old Yogas the
world was considered either an illusion or a transitional
phase: it had no prospect of having all the terms of its
existence fulfilled. Sri Aurobindo on the other hand says
that the world is a real creation of the Divine and life in
it can be completely divinised down to the very cells of the
body. The kingdom of God on earth can be brought about in
the most literal sense by a total transformation of
collective man. To put it in Sri Aurobindo’s words:
“Here and not elsewhere the highest God head has
to be found, the soul’s divine nature developed out of
the imperfect physical human nature and through unity
with God and man and universe the whole large truth of
being discovered and lived and made visibly wonderful.
That completes the long cycle of our becoming and
admits us to a supreme result; that is opportunity
given to the soul by the human birth and until that is
accomplished, it can not cease.”
For this transformation a new power called the ‘supermind’
which was sealed to this earth till now is needed, F
Shri Soli Sorabjee, for the petitioners, bas contended
that the followers of Sri Aurobindo satisfy the aforesaid
three conditions and, therefore, they constitute a religious
denomination. Strong reliance was placed on The
Commissioner, Hindu Religious Endowments, Madras v.
Lakshmindra Thirtha Swamiar of Sri Shitur Mutt (supra). In
that case the followers of Rarnanuja, the fol lowers of
Madhwacharya and the followers of other religious teachers
were held to be the religious denomination. On the strength
of this case it was contended that Sri Aurobindo was also a
religious teacher and, therefore, there is no reason on
principle which compels the conclusion that the followers of
Aurobindo who share common faith and organisation and have a
distinctive name do not constitute a
778
religious denomination. A similar view was taken in Nalam
Ramalingayya v. The Commissioner of Charitable and Hindu
Religious Institutions and Endowments, Hyderabad(1). Dealing
with the expression ‘religious denomination’, a Division
Bench of the Andhra Pradesh High Court relying on Sri
Lakshmindra’s case (supra) observed as follows:
“To hold that there exists a religious
denomination, there must exist a religious sect or a
body having a common faith and organisation and
designated by a distinctive name . Of course, any sect
or sub. sect professing certain religious cult having a
common faith and common spiritual organisation, such as
Vaishnavites, Madhvites, Saivites may be termed as
religious denomination but L certainly not any caste,
sub-caste or sect of Hindu religion, who worship mainly
a particular deity or god.”
It was further contended that the words “religion’ and
‘religious denomination’ must not be construed in the
narrow, restrictive and orthodox or traditional sense but
must be given a broad meaning.
It may be observed that in the case of The
Commissioner, Hindu Religious Endowments, Madras v.
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra)
different sects and sub. sects of the Hindu religion founded
by various religious teachers were called a religious
denomination on the ground that they being part of Hindu
religion would also be designated as a religious
denomination if the followers of Hindu religion constituted
a religious denomination as the part must bear the impress
of the whole. This observation was in this content. The
other case taking a similar view viz. Nalam Ramalingayya v.
The Commissioner of Charitable and Hindu Religious
Institutions and Endowments, Hyderabad (supra) is also based
on the same ground.
For the petitioners it was further submitted that Sri
Aurobindo and the Mother were adverse to ‘religion’ as
‘Religiosity” and “Religionism” but not lo “True Religion”.
Reference was made to various writings of Sri Aurobindo and
the Mother:
Sri Aurobindo
“In order to exceed our Nature and become divine,
we must first get God, for we are the lower imperfect
term of
779
Our being. He is its higher perfect term, The finite to
A become infinite, must know, have and touch infinity;
the symbol being in order to become its own reality,
must know, love and preceive that Reality. This
necessarily is the imperative justification of
religion; not of a church, creed or theology-for all
these things are religiosity, not religion-but that
personal and intimate religious temper and spirit which
moves men to worship, to aspire to or to pant after his
own idea of the supreme.
(SABCV 17, p. 54-55)
“It is true in a sense that Religion should be the
dominant thing in life.. When it identifies with a creed or
cult or system of ceremonial acts it may well become a
retarding force There are two aspects of religion. Spiritual
Religion and Religionism. True Religion is spiritual
Religion, which seeks to live in spirit in what is . beyond
the intellect.. Religionism on the other hand entrenches
itself in some narrow pietistic exaltation of the lower
members. It lays exclusive stress on intellectual dogmas,
forms and ceremonies .
(SABCV 15, p. 166-67)
The Mother
“We give the name of religion to any concept of
the world or the universe which is presented as the
exclusive Truth in which one must have an absolute
faith, generally because this Truth is declared to be
the result of a revelation.
Most religions affirm the existence of a God and
the rules to be followed to obey him, but there are some
Godless religions, such as socio-political organisations
which, in the name of an Ideal or the State, claim the same
right to be obeyed
(MCV No. 13, p. 212-13)
“The first and principal article of these
established and formal religions runs always “Mine is
the supreme, the only truth, all others are in
falsehood or inferior.” For without this fundamental
dogma, established religions could not have existed. If
you do not believe and. proclaim that you
780
alone possess the one or the highest truth, you will
not be able to impress people and make them flock to
you.
(MCV No. 3, p. 77)
“He who has a spiritual experience and faith,
formulates it in the most appropriate words for
himself. But if he is convinced that this expression is
the only correct and true one for this experience and
faith, he becomes dogmatic and tends to create a
religion.
(MCV No. 13. p. 22)
“Imagine someone who, in some way or other has
heard of something like the Divine or has a personal
feeling that something of the kind exists, and begins
to make all sorts of efforts, efforts of will, of
discipline, efforts of concentration, all sorts of
efforts to find this Divine, to discover what he is, to
become acquainted with Him and unite with Him. Then
this person is doing Yoga. Now if this person has noted
down all the processes he has used and constructs a
fixed system, and sets up all that he has discovered is
absolute laws-for example he says, the Divine is like
this, to find the Divine you must do this, make this
particular gesture, take this attitude, perform this
ceremony and you must admit that this is the truth, you
must say “I accept that this is the Truth and I fully
adhere to it; and your method is the only right one,
the only one which exists”- if all that is written
down, organised arranged into fixed laws and
ceremonies, it becomes a religion.
(MCV No. 8, p. 147)
Sri Aurobindo
“You express your faith in Sri Aurobindo with
certain words, which are for you the best expression of
this faith; this is quite all right. But if you are
convinced that these very words are the only correct
ones to express what Sri Aurobindo is, then you become
dogmatic and are ready to create a religion.”
(Sri Aurobindo Circle 21 No. 1965)
“That is why religions always blunder, always for
they want to standardise the expression of an
experience and impose it on all as an irrefutable
truth. The experience was
781
true, complete in itself, convincing-for him who had
it. A The formulae he has made of it is excellent-for
him; but to want to impose it on others is a gross
error which bas altogether disasterous consequences-
always and which always takes away, far away from the
Truth.”
“That is why all religions, however fine they may
be have always led men to the worst excesses. All
crimes, all horrors that have been prepetrated in the
name of religion are among the darkest spots in human
history.”
(Bulletin No. 1968, p. 129 31)
“You see, this is what I have learned : the
failure of the religions. It is because they were
divided. They wanted people to be religious to the
exclusion of the other religious.. And what the new
consciousness wants is: no more divisions. to find the
meeting point.”
(MCV No. 13, p. 293-94)
“There is no word so plastic and uncertain in its
meaning as the word religion. The word is European and,
therefore, it is as well to know first what the
Europeans mean by it. In this matter we find them..
divided in opinion. Sometimes they use it as equivalent
to a set of beliefs, sometimes as equivalent to
morality coupled with a belief in God, sometimes as
equivalent to a set of pietistic actions and emotions.
Faith, works and pious observances, these are the three
recognised elements of European religion…
Religion in India is a still more plastic term and
may mean anything from the heights of Yoga to
strangling your fellowman and relieving him of the
wordly goods he may happen to be carrying with him. It
would, therefore, take too long to enumerate everything
that can be included in Indian religion.”
-Sri Aurobindo (Glossary of Terms in Sri
Aurobindo’s Writings, p. 132)
Emphasis was also laid upon the opinion of the
authoritative sources in support of the contention that the
teachings of Sri Aurobindo constitute a religion and the
Society a religious denomination. The Encyclopaedia of
Philosophy (1972 ed., Vol. 1, pp.
782
208-9) observes:
“Sri Aurobindo was an Indian metaphysician and
founder of a new religious movement with headquarters
at Pondichery. The religious movement associated with
him has increased its following in India, and has made
some converts in the West……… God must ‘descend’
into human experience. This illumination of individual
will lead to the emergence of a divinised
community,…Aurobindo produced a synthesis between
older Indian religious ideas and the world affirming
attitudes of Christian theism.”
The Encyclopaedia Brittanica talking about Sri
Aurobindo says:
“Sri Aurobindo devoted himself to discover the way
by which the Universe might be made divine…Sri
Aurobindo has been acclaimed as the prophet of the
Superman, as the hierophant of the ‘new age’……He
has called his stand point that of a spiritual religion
of humanity.”
The Dictionary of Comparative Religion (1970 ed., p. 117)
mentions:
“According to Aurobindo, there is a progressive
evolution of the divine Being through matter no higher
spiritual forms, and the Aurobindo movement is held to
represent vanguard of this evolutionary process in our
own times. Aurobindo practised and taught an ‘integral
yoga’ in which meditative and spiritual exercises are
integrated with physical, cultural and intellectual
pursuits.”
Encyclopaedia Americana (1966 Vol. 12, p. 634) states:
“He (Sri Aurobindo) abandoned politics to found a
religious school(1910) at Pondicherry. A practising
Yoga philosopher, he wrote numerous spiritual and
mystical works.”
The Gazetteer of India, published by the Government of
India, Vol. 1, Country and People, Chapter 8, Religion, pp.
413-500, Section on Sri Aurobindo, states:
“Sri Aurobindo gave new interpretations of the
vedas and the Vedanta. and in his Essays on the Gita he
expoun-
783
ded what he called “the integral view of Life”. His
great A work, The Life Divine, is a summing up of his
philosophy of “the Descent of the Divine into Matter”.
The importance of Sri Aurobindo’s misiion lies in his
attempt to explain the true methods of Yoga.”
In the Newsweek (Nov. 20, 1972) the International
Weekly, its ‘religion’ Editor, Woodward, writes:
“The Next Religion”: Some students of oriental
thought believe that Sri Aurobindo’s spiritual vision
and discipline may blossom into the first new religion
of global scope since the rise of Islam thirteen
centuries ago .. Sri Aurobindo left behind a nucleus of
disciples in Pondicherry where the Master’s work is
carried on by 1800 devotees who live in India’s largest
Ashram or spiritual community.”
Reference was also made to the opinions of the philosophers
and professors of religion about the teachings of Sri
Aurobindo. Frederic Spiegelberg, in his book ‘Living
Religions of the World’, p. 190-205, writes that in Sri
Aurobindo:
“We pass beyond specific religions to a synthetic
vision of the religious impulse itself, a vision
designed to embrace all previous and future history all
previous and future paths.
Sri Aurobindo is a man worshipped by hundreds of
thousands and respected by millions.. In his retreat at
Pondicherry he is less the philosopher of Hinduism than
the philosopher of religion in general, the voice of
that which comparative religion leaves undisputed.”
Mr. Robert Neil Minor, Professor of Religion,
University of Kansas, writes:
“on the level of Mind, then Aurobindo’s system can
not be falsified. It therefore cannot be verified on
the level of Mind. But as a religion it is a total
package. Aurobindo did not offer a religious view of
which one could accept and reject parts. He offered an
integral system based upon an integral vision. He
offered. as well, the vision itself.”
(Sri Aurobindo: The Perfect and the Good, 177)
784
And, the opinions of similar other professors of religion
and philosophers have been quoted to show that the teachings
of Sri Aurobindo have been treated as religion by
theologians and by professors and by important news
agencies.
The interpretations of the term ‘religion’ used in
different Acts were also referred to but it is not necessary
to refer to them as we are to interpret the term ‘religion’
and ‘religious denomination, with references to Articles 25
and 26 of the Constitution.
Mr. S. Rangarajan appearing for the petitioners in one
of the other writ petitions substantially adopted the
contentions raised by Mr. Soli Sorabjee and further
supplemented the same by raising the following points.
According to him the ingredients of religion are .
(1) A spiritual ideal;
(2) A set of concepts or precepts on God-Man
relationship underlying the ideal:
(3) A methodology given or evolved by the founder or
followers of the religion to achieve the ideal;
and
(4) A definite following of persons having common
faith in the precepts and concepts;
and in order to constitute a ‘religious denomination’ two
further ingredients are needed:
(5) The followers should have a common organisation;
(6) They should be designated and designable by a
distinct name-This may usually be the name of the
founder himself.
The counsel contends that the ideal in Sri Aurobindo’s
religion is a ‘Divine Life in a Divine Body’ by Divinising
Man and by trans forming his mind, vital and physical.
According to Sri Aurobindo, in the beginning the whole
universe was full of all-pervading Divine consciousness. He
called the dynamic portion of the Divine as ‘Supermind’. The
Divine-the Supermind-according to him, wanted to see its
manifestation even in matter. By a process of involution the
Divine. which is the subtlest became grosser and grosser
giving
785
rise to various planes of consciousness. This was achieved
through , lnvolution-Evolution and Divinisation of Man. The
methodology for achieving the ideal was the ‘Integral Yoga’
which only means using all the methods-Bhakthi, knowledge,
work meditation, concentration, attaining perfection to
derive optimum benefits of each one of them, by total
surrender to the Divine and by becoming the instrument of
the Divine.
Sri Aurobindo has a definite following. In the
beginning, this consisted of a few disciples. Slowly their
number increased and an Ashram grew. Then there are definite
organisations, Ashrams, Sri Aurobindo Society with more than
300 centres the world over. The devotees of Sri Aurobindo
are also referred to as Aurobindonians.
There are certain other attributes which indicate that
the followers of Sri Aurobindo constitute a religious
denomination, for example, chanting of Mantras, specially
prepared by Sri Aurobindo, a particular symbol also used for
identification, place of pilgrimage 1) is the Samadhi of Sri
Aurobindo and the Mother, provision for meditation at the
Samadhi. Flowers are offered at the Samadhi by the devotees.
The uniqueness of his philosophy and his teachings
according to Mr. Rangarajan constitute religion and the
special features in his philosophy also make the Society a
religious denomination. Thus, all the ingredients of
religion and religious denomination are satisfied and there
is no reason why his teachings be not taken to be religious
and the institutions viz, the Society and the Auroville be
not taken to be a religious denomination within the meaning
of Articles 25 and 26 of the Constitution.
The Solicitor-General for the Union of India and Mr.
F.S. Nariman, counsel for the respondents Nos. 6 to 238, on
the other hand contended that the teachings of Sri Aurobindo
do not constitute religion nor is the Society and the
Auroville a religious denomination, and in any case there is
no violation of Article 26 of the Constitution inasmuch as
the impugned Act has taken over only the management of
Auroville from the Society and does not interfere with the
freedom contemplated by Articles 25 and 26 of the
Constitution. . H
Reference was made to rule 9 of the Rules and
Regulations of
786
Sri Aurobindo Society, which deals with membership of the
Society and provides:
“9. Any person or institution or organisation
either in India or abroad who subscribes to the aims
and objects of the Society, and whose application for
member ship is approved by the executive Committee,
will be member of the Society. The membership is open
to people everywhere without any distinction of
nationality, religion, caste, creed or sex.”
The only condition for membership is that the person seeking
the membership of the Society must subscribe to the aims and
objects of the Society. It was further urged that what is
universal cannot be a religious denomination. In order to
constitute a separate denomination, there must be something
distinct from another. A denomination, argues the counsel,
is one which is different from the other and if the Society
was a religious denomination, then the person seeking
admission to the institution would lose his previous
religion He cannot be a member of two religions at one and
the same time. But this is not the position in becoming a
member of the society and Auroville. A religious
denomination must necessarily be a new and one new
methodology must be provided for a religion. Substantially,
the view taken by Sri Aurobindo remains a part of the Hindu
philosophy. There may be certain innovations in his
philosophy but that would not make it a religion on that
account.
In support of his contention the Solicitor-Gereral
placed reliance on Hiralal Mallick v. State of Bihar(l).
Dealing with meditation this Court observed:
“Modern scientific studies have validated ancient
vedic insights a bequeathing to mankind new
meditational, yogic and other therapeutics, at once
secular, empirically tested and transreligious. The
psychological, physiological and sociological
experiments conducted on the effects of Transcendental
Meditation (TM, for short) have proved that this
science of creative intelligence, in its meditational
applications, tranquilizes the tense inside, helps meet
stress
—————————-
(1) [19781] SCR 301.
787
without distress, overcome inactivities and
instabilities and A by holistic healing normalises the
fevered and fatigued man. Rehabilitation of psychiatric
patients, restoration of juvenile offenders,
augmentation of moral tone and temper and, more
importantly, improvement of social behaviour of
prisoners are among the proven finding recorded by
researchers. Extensive studies of TM in many prisons in
the U.S.A., Canada, Germany and other countries are
reported to have yielded results of improved
creativity, higher responsibility and better behaviour.
Indeed, a few trial courts in the United States have
actually prescribed TM as a recipe for rehabilitation.
As Dr. M.P. Pali, Principal of the Kasturba Medical
College, Mangalore, has put down:
“Meditation is a science and this should be learnt
under guidance and cannot be just picked up from books.
Objective studies on the effects of meditation on human
body and mind is a modern observation and has been
studied by various investigation at MEERU-Maharishi
European Research University. Its tranquilizing effect
on body and mind, ultimately leading to the greater
goal of Cosmic Consciousness or universal awareness,
has been studied by using over a hundred parameters.
Transcendental Meditation practised for IS minutes in
the morning and evening every day brings about a host
of beneficial effects.
To name only a few:
1. Body and mind get into a state of deep relaxation.
2. B.M.R. drops, loss oxygen is consumed. F
3. E.E.G. shows brain wave coherence with ‘alpha’
wave preponderance.
4. Automatic stability increases. G
5. Normalisation of high blood pressure.
6. Reduced use of alcohol and tobacco.
7. Reduced stress, hence decreased plasma cortisol
and blood lactate. H
8. Slowing of the heart etc.”
788
This Court dealing with punishment in a criminal case
in Giasuddin v. A . P. State(l ) again observed:
“There is a spiritual dimension to the first page
of our Constitution which projects into penology.
Indian courts may draw inspiration from Patanjali sutra
even as they derive punitive patterns from the Penal
Code (most of Indian meditational therapy is based on
the sutras of Patanjali).
on the strength of these authorities it is contended
for the Union of India that the integral yoga propounded by
Sri Aurobindo is only a science and not a religion.
The Society itself treated Auroville not as a religious
institution. Auroville is a township which was conceived,
planned and developed as a centre of international culture
for the promotion of the ideals which are central to the
United Nations Educational Scientific and Cultural
organisation (UNESCO). These ideals have been explained and
proclaimed extensively in the writings of Sri Aurobindo and
the Mother. In the year 1966, Sri Aurobindo Society, devoted
as it was to the teachings of Sri Aurobindo and guided by
the Mother, proposed this cultural township to UNESCO for
the commemoration of the 20th anniversary of the UNESCO. The
Union of India took up the matter with UNESCO and it did so
on the explicit understanding that Auroville as proposed was
in full consonance and conformity with India’s highest
ideals and aspirations and that would help Auroville promote
the aims and objects of UNESCO. Accordingly, at the
Fourteenth Session of the General Conference of the UNESCO
held in Paris in 1966, a resolution was passed noting that
the proposal made by Sri Aurobindo Society to set up
Auroville as a cultural township where people of the
different countries will live together in harmony in one
community and engage in cultural, educational, scientific
and other pursuits and that the township will represent
cultures of the world not only intellectually but also
presenting different schools of architecture, paintings,
soulpture, music etc. as a part of living, bringing together
the values and ideals of civilisations and cultures,
commended the project to those interested in UNESCO’s ideals
as the project would contribute to international
understanding and promotion of peace.
———————-
(1) [1978] 1 SCR 153 @ 164.
789
The said resolution of the UNESCO was followed by two
other resolutions-one at the 15th Session in 1968 and the
other at the 16th Session in 1970. In the second resolution
the UNESCO had noted that the Society had taken steps to
establish Auroville as an international cultural township
which would fulfil the ideas of the UNESCO. The UNESCO
invited the member States and nongovernmental organisations
to participate in the development of Auroville as an
international cultural township designed to bring together
the values of different cultures and civilisations in
harmonious environment. The foundation stone of Auroville
was laid on 28 February 1968 with the participation of youth
or many nations, representing the coming together of all
Nations in a spirit of human unity. The UNESCO conceived
Auroville township as an instrument of education, promoting
mutual respect and understanding between people in keeping
with the spirit of Universal Declaration of Human Rights and
Universal Declaration of Principles of International
Cultural Cooperation.
The Government of India took active part in making the
1 UNESCO interested in the project and take decision as
aforesaid for the development of Auroville as an
international cultural township with the participation of
countries who are members of the UNESCO.
Sri Aurobindo Society had brought the proposal of
Auroville to the Government of India and explained that
Auroville was to be an international cultural township. This
fact is evident from the brochure submitted by Sri Aurobindo
Society to the Government of India.
The Charter of Auroville given by the Mother also
indicates that it is not a religious institution, as is
evident from the following: F
“1. Auroville belongs to nobody in particular.
Auroville belongs to humanity as a whole. But to
live in Auroville one must be the willing servitor
of the Divine’s consciousness. G
2. Auroville will be the place of an unending
education, of constant progress, and a youth-that
never ages.
3. Auroville wants to be the bridge between the past
and the future. Taking advantage of all
discoveries from without and from within,
Auroville will boldly spring towards future
realisations.
790
4. Auroville will be the site of material and
spiritual research for a living embodiment of an
actual human unity.
On the own admission of the General Secretary of Sri
Aurobindo Society, Pondicherry, Auroville was to be a symbol
of international cooperation, an effort to promote
international under standing by bringing together in close
juxtaposition the values and ideals of different
civilisations and cultures. The cultures of different
regions of the earth will be represented in Auroville in
such a way as to be accessible to all not merely
intellectually in ideas, theories, principles and languages,
but also in habits and customs; art in all forms-paintings,
sculpture, music, architecture, decor, dance; as well as
physically through natural scenery, dress, games, sports and
diet. It will be a representation in a concrete and Jiving
manner; it will have a museum, an art gallery, a library of
books, recorded music etc. It will also have other objects
which will express its intellectual, scientific and artistic
genious, spiritual tendencies and national characteristics.
While participating in UNESCO meeting “Design for
Integrated Living Programme in Auroville” was presented and
that also goes a long way to show that it was only a
cultural township and not a religious institution.
Numerous utterings by Sri Aurobindo or the Mother
unmistakably show that the Ashram or Society or Auroville is
not a religious institution. In Sri Aurobindo’s own words
(The Teaching and the Ashram of Sri Aurobindo, 1934, p. 6):
“The Ashram is not a religious association Those
who are here come from all religions and some are of no
religion. There is no creed or set of dogmas, no
governing religious body; there are only the teachings
of Sri Aurobindo and certain psychological practices of
concentration and meditation, etc., for the enlarging
of the consciousness, receptivity to the Truth, mastery
over the desires, the discovery of the divine self and
consciousness concealed within each human being, a
higher evolution of the nature.”
791
Sri Aurobindo himself said(1):
“I may say that it is far from my purpose to
propagate any religion, new or old.”
Sri Aurobindo says again(2):
“We are not a party or a church or religion,”
Sri Aurobindo exposes(3):
“Churches and creeds have, for example, stood
violently in the way of philosophy and science, burned a
Giordano Bruno, imprisoned a Galileo, and so generally
misconducted themselves in this matter that philosophy and
science had a self-defence to turn upon Religion and rend
her to pieces in order to get a free field for their
legitimate development.”
The Mother said on 19.3.1973:
“Here we do not have religion.”
Sri Aurobindo says again(4):
“Yogic methods have some thing of the same
relation to the customary psychological workings of man
as has to scientific handling of the natural force of
electricity or of steam to the normal operations of
steam and of electricity. And the, too are formed upon
a knowledge developed and confirmed by regular
experiment, a practical analysis and constant
results….All methods grouped under the common name of
Yoga are special psychological processes founded on a
fixed truth of nature and developing, out of normal
functions, powers and results which were always latent
but which her ordinary movements do not easily or do
not often manifest.”
792
It is pertinent to quote Mother’s answer to a question(1):
“Q. Sweet Mother, what is the difference between
Yoga and religion;
Mother’s Ans: Ah! My child.. It is as though you
were asking me the difference between a dog and a cat.”
There can be no better proof than what Sri Aurobindo
and the Mother themselves thought of their teachings and
their institutions to find out whether the teachings of Sri
Aurobindo and his Integral Yoga constitute a religion or a
philosophy. The above utterings from time to time by Sri
Aurobindo and the Mother hardly leave any doubt about the
nature of the institution. It was on the basis that it was
not a religions institution that the Society collected funds
from the Central Government and the Governments of States
and from abroad and the other non-governmental agencies,
Mr. F.S. Nariman appearing for respondents Nos. 6 to
238 adopted the arguments advanced by the Solicitor General
Mr. K. Parasaran, and supplemented the same. He submitted
that the Society was registered under the Societies
Registration Act, 1860 and a purely religious society could
not have been registered under the Societies Registration
Act. Section 20 of the Societies Registration Act provides
what kind of Societies can be registered under the Act. It
does not talk of religious institutions. Of course, it
includes a society with charitable purposes. Section 2 of
the Charitable Endowments Act, however, excludes charity as
a religious purpose. It was further contended that the
nature of the institution can be judged by the Memorandum of
Association. The Memorandum of Association does not talk of
any religion. The purpose of the Society was to make known
to the members and the people in general the aims and ideals
of Sri Aurobindo and the Mother; their system of Integral
Yoga and to work for its fulfillment in all possible ways;
to train selected students and teachers from all over the
world in the Integral System of Education, i.e., the
spiritual, psychic, mental, vital and physical; to help in
cash or in kind by why of donations etc.; to organise,
encourage, promote and assist in the study, research, and
pursuit of science literature and fine arts etc. Nowhere it
talks of propagating religion. This is the surest
793
index to know whether the Auroville or the Society was a
religious A institution.
It was further contended that a religious denomination
must be professed by that body but from the very beginning
the Society has eschewed the word ‘religion’ in its
constitution. The Society professed to be a scientific
research organisation to the donors and got income-tax
exemption on the footing that it was not a religious
institution. The Society has claimed exemption from income-
tax under s. 80 for the donors and under s. 35 for itself on
that ground. Ashram Trust was different from Auroville
Ashram. The Ashram Trust also applied for income-tax
exemption and got it on that very ground. So also Aurobindo
Society claimed exemption on the footing that it was not a
religious institution and got it. They professed to the
Government also that they were not a religious institution
in their application for financial assistance under tho
Central Scheme of Assistance to voluntary Hindu
organisations.
On the basis of the materials placed before us viz.,
the Memorandum of Association of the Society, the several
applications made by the Society claiming exemption under s.
35 and s. 80 of the Income-tax Act, the repeated utterings
of Sri Aurobindo and the Mother that the Society and
Auroville were not religious institutions and host of other
documents there is no room for doubt that neither the
Society nor Auroville constitute a religious denomination
and the teachings of Sri Aurobindo only represented his
philosophy and not a religion.
Even assuming but not holding that the Society or the
Auroville were a religious denomination, the impugned
enactment is not hit by Article 25 or 26 of the
Constitution. The impugned enactment does not curtail the
freedom of conscience and the right freely to profess
practise and propagate religion. Therefore, there is no
question of the enactment being hit by Article 25.
Article 26 as stated earlier confers freedom to the
religious denomination:
(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
794
(d) to administer such property in accordance with
law.
The impugned enactment does not stand in the way of the
Society establishing and maintaining institutions for
religious and charitable purposes. It also does not stand in
the way of the Society to manage its affairs in matters of
religion. It has only taken over the management of the
Auroville by the Society in respect of the secular matters.
The position before the present Constitution came into force
was that the State did not interfere in matters of religion
in its doctrinal and ritualistic aspects treating it as a
private purpose, but it did exercise control over the
administration of property endowed for religious
institutions (dedicated to the public) treating it as a
public purpose, and this position has not changed even under
the present Constitution.(1)
The scope and extent of the rights conferred by
Articles 25 and 26 of the Constitution are now well-settled
by the decision of this Court.
To start with, in The Commissioner, Hindu Religions
Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt(2) dealing with various aspects of Article 26 of
the Constitution this Court observed as follows:
“The other thing that remains to be considered in
regard to article 26 is, what is the scope of clause
tb) of the article which speaks of management of its
own affairs in matters of religion ? “The language
undoubtedly suggests that there could be other affairs
of a religious denomination or a section thereof which
are not matters of religion and to which the guarantee
given by this clause would not apply…………
It will be seen that besides the right to manage
its own affairs in matters of religion, which is given
by clause (b), the next two clauses of article 26
guarantee to a religious denomination the right to
acquire and own property and to administer such
property in accordance with law. The administration of
its property by a religious denomination has thus been
placed on a different footing
795
from the right to manage its own affairs in matters of
A religion. The latter is a fundamental right which no
legislature can take away, whereas the former can be
regulated by laws which the legislature can validly
impose. It is clear, therefore, that questions merely
relating to administration of properties belonging to a
religious group or institution are not matters of
religion to which clause (b) of the article applies
….. freedom of religion in our Constitution is not
confined to religious beliefs only; it extends to
religious practices as well subject to the restrictions
which the Constitution itself has laid down. Under
article 26(b), therefore, a religious denomination or
organisation enjoys complete autonomy in the matter of
deciding as to what rites and ceremonies are essential
according to the tenets of the religion they hold and
no outside authority has any jurisdiction to interfere
with their decision in such matters. Of course, the
scale of expenses to be incurred in connection with
these religious observations would be a matter of
administration of property belonging to the religious
denomination and can be controlled by secular
authorities in accordance with any law laid down by a
competent legislature; for it could not be the
injunction of any religion to destroy The institution
and its endowments by incurring wasteful expenditure on
rites and ceremonies. It should be noticed, however,
that under article 26(b) it is the fundamental right of
a religious denomination or its representative to
administer its properties in accordance with law; and
the law, therefore, must leave the right of
administration to the religious denomination itself
subject to such restrictions and regulations as it
might choose to impose. A law which takes away the
right of administration from the hands of a religious
denomination altogether and vests it in any other
authority would amount to a violation of the right
guaranteed under clause (d) of Article 26.” G
The same principle was reiterated by this Court in The
Durgah Committee, Ajmer and Anr. v. Syed Hussain Ali and
ors.(l).
In Tilkyat Shri Govindlaljl Maharaj v. The State of
Rajasthan and ors.(2) it was held that the right to manage
the properties of
796
a temple was a purely secular matter and could not be
regarded as a religious practice under Art. 25(1) or as
amounting to affairs in matters of religion under Art. 26(b)
consequently, the Nathdwara Temple Act in so far as it
provided for the management of the properties of the
Nathdwara Temple under the provisions of the Act did not
contravane Arts. 25(1) and 26(b) of the Constitution.
In Sastri Yagnapurushadji and Ors. v. Muldas Bhudardas
Vaishya and Anr.(l) the appellants who were the followers of
the Swaminarayan sect and known as satsangis, filed a
representative suit for a declaration that the relevant
provisions of the Bombay Harijan Temple Entry Act, 1947 (as
amended by Act 77 of 1948) did a not apply to their temples
because, the religion of the Swaminarayan sect was distinct
and different from Hindu religion and because, the relevant
provisions of the Act were ultra vires. Dealing with the
question this Court observed as will appear from the
headnote:
“The Indian mind has consistently through the ages
been exercised over the problem of the nature of
godhead, the problem that faces the spirit at the end
of life, and the interrelation between the individual
and the universal soul. According to Hindu religion the
ultimate goal of humanity is release and freedom from
the unceasing cycle of births and rebirths and a state
of absorption and assimilation of the individual soul
with the infinites. On the means to attain this and
there is a great divergence of views; some emphasise
the importance of Gyana, while others extol the virtue
of Bhakti or devotion, yet others insist upon the
paramount importance of the performance of duties with
a heart full of devotion and in mind inspired by
knowledge, Naturally it was realised by Hindu religion
from the very beginning of its career that truth was
many-sided and different views contained different
aspects of truth which no one could fully express. This
knowledge inevitably bread a spirit of tolerance and
willingness to understand and appreciate the opponent’s
point of view. Because of this broad sweep of Hindu
philosophic concept under Hindu philosophy, there is no
scope for ex communicating any notion or principle as
hertical and rejecting it as such. The development of
Hindu religion .11 and philosophy shows that from time
to time saints and
797
religious reformers attempted to remove from Hindu A thought
and practices, elements of corruption and superstition, and
revolted against the dominance of rituals and the power of
the priestly class with which it came to be associated, and
that led to the formation of different sects. In the
teaching of these saints and religious reformers is
noticeable a certain amount of divergance in their respec-
tive views; but underneath that divergence lie certain broad
concepts which can be treated as basic and there is a kind
of subtle indescribable unity which keeps them within the
sweep of broad and progressive Hindu religion. The first
among these basic concepts is the acceptance of the Vedas as
the highest authority in religious and philosophic matters.
This concept necessarily implies that all the systems claim
to have drawn their principles from a common reservoir of
thought enshrined in the Vedas. 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 of performances; in fact, it does not
satisfy the traditional features of a religion or creed. It
is a way of life and nothing more. The Constitution makers
were fully conscious of the broad and comprehensive
character of Hindu religion; and while guaranteeing the
fundamental right to freedom of religion made it clear that
reference to Hindus shall be construed as including a
reference to persons professing the Sikh, Jaila or Budhist
religion.
Philosophically, Swaminarayan was a follower of
Ramanuja and the essence of his teachings is acceptance of
the Vedas with reverance, recognition of the fact that the
path of Bhakti or devotion leads to Moksha, insistence or
devotion to Lord Krishna and a determination to remove
corrupt practices and restore Hindu religion to its original
glory and purity. This shows unambiguously and unequivocally
that Swaminarayan was a Hindu saint. Further, the facts that
initiation is necessary to become a Satsangi, that persons
of other religions could join the sect by initiation without
any process of proselytising on such occasions, and that
Swaminarayan himself is treated as a God, are not
inconsistent with the basic Hindu religious and philosophic
theory.”
798
In Digyadarsan Rajendra Ramdassji Varu v. State of
Andfhra Pradesh and Anr.(1)dealing with Articles 25 and 26
of the Constitution this Court on the facts and
circumstances of the case held:
“It has nowhere been established that the
petitioner has been prohibited or debarred from
professing practising and propagating his religion. A
good deal material has been placed on the record to
show that the entire math is being guarded by police
constables but that does not mean that the petitioner
cannot be allowed to enter the math premises and
exercise the fundamental right conferred by Art. 25(I)
of the Constitution As regards the contravention of
clause (b) and (d) of Art. 26 there is nothing in ss.
46 and 47 which empowers the Commissioner to interfere
with the autonomy of the religious denomination in the
matter of deciding as to what rites and ceremonies are
essential according to the tenets of the religion the
denomination professes or practises nor has it been
shown that any such order has been made by the
Commissioner or that the Assistant Commissioner who has
been put in charge of the day-to-day affairs is
interfering in such matters.”
On these observations the impugned Act in that case was
upheld by the Court.
In 1. Krishnan v. G.D.M. Committee(2) a full Bench of
the Kerala High Court dealing with Arts. 25 and 26 observed:
“…the real purpose and intendment of Articles 25
and 26 is to guarantee especially to the religious
minorities in this country the freedom to profess,
practise and propagate their Religion, to establish and
maintain institutions for religious and charitable
purposes, to manage its own affairs in matters of
religion, to own and acquire properties and to
administer such properties in accordance with law
subject only to the limitations and restrictions
indicated in those Articles. No doubt, the freedom
guaranteed by these two Articles applied not merely to
religious minorities but to all persons (Article 25)
and all
799
religious denominations or sections thereof (Article
26). A But, in interpreting the scope and content of
the guarantee contained in the two Articles the Court
will always have to keep in mind the real purpose
underlying the incorporation of these provisions in the
fundamental rights chapter. When a challenge is raised
before a court against the validity or any statute as
contravening the fundamental rights guaranteed under
Article 25 and 26 it is from the above perspective that
tho court will approach the question and the tests to
be applied for adjudging the validity of the statutes
will be the same irrespective of whether the person or
denomination complaining about the infringement of the
said fundamental right belongs to a religious minority
or not.”
In Ramalingayya v. The Commissioner of Charitable and
Hindu Religious Institutions & Endowments(l) dealing with
‘religious denomination’ the Andhra Pradesh High Court held:
“Thus it is the distinct common faith and common
spiritual organisation and the belief in a particular
religious teacher of philosophy on which the religious
denomination is founded or based, that is the essence
of the matter, but not any caste, or sub-caste or a
particular deity worship by a particular caste or
community.”
In United States v. Danial Andrew Seegar(2) the U.S.
Supreme Court had to construe the provisions of s. 6(j) of
the Universal Military Training and Service Act of 1948
which, as a prerequisite of exempting a conscientious
objector from military service, requires l? his belief in a
relation to a Supreme Being involving duties superior to
those arising from any human relation. Defendant’s claim to
exemption as conscientious objector was denied after he,
professing religious belief and faith and not disavowing,
although not clearly demonstrating any belief in a relation
to a Supreme Being, stated that “the cosmic order does,
perhaps, suggest a creative intelligence” and decried the
tremendous “spiritual” price man must pay for his
willingness to destroy human life. The expression ‘Supreme
Being’ was liberally construed.
800
The Court dealing with the idea of God quoted from
various religious teachers thus:
“The community of all peoples is one. One is their
origin for God made the entire human race live on all
the face of the earth. One, too, is their ultimate end,
God. Men expect from the various religions answers to
the riddles of the human condition: What is man ? What
is the meaning and purpose of our lives 1 What is the
moral good and what is sin ? What are death, judgment,
and retribution after death ?
Ever since primordial days, numerous peoples have
had a certain perception of that hidden power which
hovers over the course of things and over the events
that make up the lives of man; some have even come to
know of a Supreme Being and Father. Religions in an
advanced culture have been able to use more refined
concepts and a more developed language in their
struggle for an answer to man’s religious questions
The proper question to ask, therefore, is not the
futile one. Do you believe in God ? But rather, What
kind of God do you believe in ?
Instead of positing a personal God, whose
existence man can neither prove nor disprove, the
ethical concept is founded on human experience. It is
anthropocentric, not theocentric. Religion, for all the
various definitions that have been given of it, must
surely mean the devotion of man to the highest ideal
that he can conceive. And that ideal is a community of
spirits in which the latent moral potentialities of men
shall have been elicited by their reciprocal endeavours
to cultivate the best in their fellow men. What
ultimate reality is we do not know; but we have the
faith that it expresses itself in the human world as
the power which inspires in men moral purpose.”
On an analysis of the aforesaid cases it is evident
that even assuming that the Society or Auroville was a
religious denomination, clause (b) of Art. 26 guarantees to
a religious denomination a right to manage its own affairs
in matters of religion. It will be seen that besides the
right to manage its own affairs in matters of
801
religion, which is given by clause (b), the next two clauses
of Art. 26 A guarantee to a religious denomination the right
to acquire and own property and to administer such property
in accordance with law. The administration of its property
by a religious denomination has thus been placed on a
different footing from the right to manage its own affairs
in matters of religion. The latter is a fundamental right
which no legislature can take away, whereas the former can
be regulated by laws which the legislature can validly
impose. It is clear, therefore, that questions merely
relating to a religious group or institution are not matters
of religion to which clause (b) of the article applies. The
impugned Act had not taken away the right of management in
matters of religion of a religious denomination, if the
Society or Auroville is a religious denomination at all,
rather it has taken away the right of management of the
property of Auroville.
Thus the impugned Act neither violates Article 25, nor
Article 26 of the Constitution.
The impugned Act was also feebly sought to be
challenged as violating Arts. 29 and 30 of the Constitution.
We are at a loss to understand how these two articles have
any bearing on the impugned Act. These two articles confer
four distinct rights:
(i) Right of any section of citizens to conserve its
own language, script or culture (Art. 29(1)).
(ii) Right of all religious or linguistic minorities to
establish and administer educational institutions
of their choice (Art. 30(I)).
(iii) Right of an educational institution not to be dis
criminated against in matter of state aid on the
ground that it is under the management of a
minority (Art. 30(2)).
(iv) Right of a citizen not to be denied admission into
a state maintained or state aided educational
institution on grounds only of religion, race,
caste, language (Art. 29(2)).
The impugned Act does not seek to curtail the rights of
any section of citizens to conserve its own language, script
or culture
802
conferred by Art. 29. In order to claim the benefit of Art.
30(I) the community must show: (a) that it is a religious or
linguistic minority, (b) that the institution was
established by it. Without satisfying these two conditions
it cannot claim the guaranteed rights to administer it.
In re The Kerala Education Bill(l) Article 30(1) of the
Constitution which deals with the right of minorities to
establish and administer education institutions, came for
consideration. The Kerala Educational Bill, 1957, which had
been passed by the Kerala Legislative Assembly was reserved
by the Governor for consideration by the President.
The contention of the State of Kerala was that the
minority communities may exercise their fundamental right
under Article 30(1) by establishing educational institutions
of their choice wherever they like and administer the same
in their own way and need not seek recognition from the
Government, but that if the minority communities desire to
have state recognition they must submit to the terms
imposed, as conditions precedent to recognition, on every
educational institution. The claim of the educational
institutions of the minority communities, on the other hand
was that their fundamental right under Art. 30(1) is
absolute and could not be subjected to any restriction
whatever. This Court, however, did not accept the extreme
views propounded by the parties on either side but tried to
reconcile the two. It observed:
Article 29(]) gives protection to any section of
citizens residing in the territory of India having a
distinct language, P script or culture of its own right
to conserve the same the distinct languages, script or
culture of a minority community can best be conserved
by and through educational institutions, for it is by
education that their culture can be inculcated into the
impressionable mind of the children of their community.
It is through educational institutions that the
language and script of the minority community can be
preserved, improved and strengthened. It is, therefore,
that Art. 30(I) confers on all minorities, whether
based on religion or language, the right to establish
and administer educational institutions of their
choice.
803
The minorities, quite understandably, regard it as A
essential that the education of their children should
be in accordance with the teachings of their religion,
and they hold, quite honestly, that such an education
cannot be obtained in ordinary schools designed for all
the members of the public but can only be secured in
schools conducted under the influence and guidance of
people well versed in the tenets of their religion and
in the traditions of their culture. The minorities
evidently desire that education should be imparted to
the children of their community . in an atmosphere
congenial to the growth of their culture. our
Constitution makers recognised the validity of their
claim and to allay their fears conferred on them the
fundamental rights referred to above. But the
conservation of the distinct languages, script or
culture is not the only object of choice of the
minority communities. They also desire that scholars of
their educational institutions should go out in the
world well and sufficiently equipped with the
qualifications necessary for a useful career in life.
But according to the Education Code now in operation to
which it is permissible to refer for ascertaining the
effect of the impugned provisions on existing state of
affairs, the scholars of unrecognised schools are not
permitted to avail themselves of the opportunities for
higher education in the University and are not eligible
for entering the public services. Without recognition,
therefore, the educational institutions established or
to be established by the minority communities cannot
fulfill the real objects of their choice and-the rights
under Art. 30(1) cannot be effectively exercised. The
right to establish educational institutions of their
choice must, therefore, mean the right to establish
real institutions which will effectively serve the
needs of their community and the scholars who resort to
their educational institutions.”
In Rev. Sidhaibhai Sabhai and Ors. v. State of Bombay
and Anr.(l) dealing with article 30(I) of the Constitution,
this Court held:
“The right established by Art. 30(I) is a
fundamental right declared in terms absolute. Unlike
the fundamental
804
freedom guaranteed by Art. 19, it is not subject to
reasonable restrictions. It is intended to be a real
right for the protection of the minorities in the
matter of setting up of educational institutions of
their own choice. The right is intended to be effective
and is not to be whittled down by so-called regulative
measures conceived in the interest not of the minority
educational institutions, but of the public or the
nation as a whole. If every order which while
maintaining the formal character of a minority
institution destroys the power of administration is
held justifiable because it is in the public or
national interest, though not in its interest as an
educational institution, the right guaranteed by Art.
30(1) will be but a “teasing illusion”, a promise of
unreality. Regulations which may lawfully be imposed
either by legislative or executive action as a
condition of receiving grant or of recognition must be
directed to making the institution while retaining its
character as a minority institution effective an
educational institution. Such regulation must satisfy a
dual test-the test of reasonableness, and the test that
it is regulative of the educational character of the
institution and is conducive to making the institution
an effective vehicle of education for the minority
community or other persons who resort to it.”
In State of Kerala v. Mother Provincial(l) the
provisions of the Kerala University Act, 1969 which was
passed to reorganise the University of Kerala with a view to
establishing a teaching, residential and affiliating
University for the southern districts of the State of
Kerala, were challenged. Some of the provisions effected
private colleges, particularly those founded by minority
communities in the State. Their constitutional validity was
challenged by some members of those communities on various
grounds in writ petitions filed in the High Court. This
Court held:
“The minority institutions cannot he allowed to
fall below the standards of excellence expected of
educational institutions, or under the guise of
exclusive right of management, to decline to follow the
general pattern. While the management must be left to
them, they may be compelled to keep in step with
others.”
805
On an analysis of the two articles, Art. 29 and Art. 30
and the three cases referred to above, it is evident that
the impugned Act does not seek to curtail the right of any
section of citizens to conserve its own language, script or
culture conferred by Art. 29. The benefit of Art. 30(I) can
be claimed by the community only on proving that it is a
religious or linguistic minority and that the institution
was established by it. In the view that we have taken that
Auroville or the Society is not a religious denomination,
Articles 29 and 30 would not be attracted and, therefore,
the impugned Act cannot be held to be violative of Articles
29 and 30 of the Constitution.
This leads us to the third ground, namely, the impugned
Act being violative of Article 14 of the Constitution
inasmuch as Sri Aurobindo Society has been singled out for
hostile treatment, and the legislation is against this
particular institution. In order to appreciate this argument
it would be necessary to refer to the circumstances which
led to the passing of the impugned Act.
Sri Aurobindo Society is a society registered under the
West Bengal Societies Registration Act, 1961. The main
objective of the Society is inter alia to make known to the
member. and people in general the aims and ideals of Sri
Aurobindo and the Mother; their system of Integral Yoga and
to work for its fulfillment in all possible ways and for the
adoption of a spiritualised society as envisaged by Sri
Aurobindo. The Society was engaged right from its inception
in collecting funds for the promotion of works of Sri
Aurbindo and the Mother. The Society contributes funds to
Sri Aurobindo Ashram and its international Centre of
Education, Auroville. As the work of the Society began to
grow it needed larger and larger funds for the sustenance of
its own activities. In due course the Society opened several
centres all over India, particularly at Calcutta, Bombay,
New Delhi and Madras. It has centres also in U.S.A., Zurich.
Osaka and Nairobi. Sri Aurobindo Society has two registered
offices, one at Calcutta and another at Pondicherry. In
order to facilitate the work of Sri Aurobindo Society to
collect funds, on a representation made by the Society the
Income-tax Department of the Government of India gave
exemption to the Society from income-tax under section
35(1)(iii) of the Income Tax Act. Income-tax exemption was
claimed by the Society on the ground that it is engaged in
educational, cultural and scientific activities and social
sciences research. It was on this understanding that the
exemption from income-tax was granted to the
806
Society and it is through this exemption that the Society,
had collected a huge amount from the public.
For the first few years the development of Auroville
showed a remarkable progress and development and things were
growing at a rapid pace. A number of Indians and foreigners
settled down in Auroville and devoted themselves to various
activities of planning, designing, agriculture, education,
construction and other works such as those of hand-made
paper and other crafts and industries. A remarkable harmony
among members of Auroville was visible and this gave a
promise to the Government of India of an early fulfillment
of the ideals for which Auroville was established and
encouraged by UNESCO and other international organisations
of the world.
After the passing away of the Mother in 1973, however,
the situation changed and the Government received
information that the affairs of the Society were not being
properly managed, that there was mismanagement of the funds
of the Society and diversion of the funds meant for
Auroville to other purposes.
The accounts of Sri Aurobindo Society were audited upto
the year ending 31st December, 1974. For the years 1960 to
1971 the E; audit was conducted by late Sri Satinath
Chattopadhyaya, Chartered Accountant and for the years 1972
to 1974 by Sri T. R. Thulsiram, Chartered Accountant and
Internal Auditor of the Society. The letter addressed by him
to the President, Sri Aurobindo Society dated May 26, 1976
relating to the affairs of Bharat Niwas as on 31st March,
1976 is revealing one and the relevant portion is extracted
below:
“Thus we have an unutilised deficit of about 10
lakhs at the end of 31.12.74 and of about 12 lakhs at
the end of 1975 or upto 31.3.76. The situation has not
improved uptil now. The activities of construction have
almost come to a close after 31.12 74. Further, there
are heavy bank overdrafts apart from the reduction in
O. D. facilities and freezing of the money in O. D.
account. Therefore, in these circumstances it is
clearly seen that government monies received for the
specific purpose of Bharat Niwas have been diverted for
other purposes and there are no more free liquid
resources either as cash or in bank accounts. So we
cannot explain saying that monies are immediately
available for construction and that the construction
activities are
807
being continued without stop. This really is a serious
matter A that calls for the proper solution.
Therefore, in the above circumstances it is
absolutely necessary that earlier steps be taken to
correct the situation before serious audit objections
are raised by the Government Auditors. We are afraid to
say that we ourselves would be constrained to make a
qualified report of audit, if the state of affairs does
not get corrected immediately.”
The situation in. Auroville became so acute that at the
instance of the Ministry of Home Affairs, Government of
India, an enquiry was conducted in 1976 br the Chief
Secretary, Pondichery, into certain aspects of the
functioning of Sri Aurobindo Society. The report of the
Chief Secretary mentioned instances of serious irregularies
in the management of the Society, suspected misuse of funds
and auditors’ comments about the misutilisation of funds and
its diversion, and it was suggested that a further probe in
the financial matters of the Society and organisations
connected with the Auroville Project may be made by a team
of competent auditors.
Considering the special position of Auroville as a
cultural township of international importance, the
substantial grants of the order of more than Rs. 90 lakhs
given by the Government of India and the State Governments
towards the fulfillment of the ideals of Auroville, the
presence of a large number of foreigners in Auroville who
had left their hearth and home for Auroville which had
received sponsorship from Indian Government and UNESCO, the
continued groupism and infighting which was bringing bad
name to Auroville and the special responsibility of the
Government of India in regard p to the foundation and
development-of Auroville, the Government of India decided to
set up a committee under the Chairmanship of the Lt.
Governor of Pondichery with the Chief Secretary of the Tamil
Nadu and Additional Secretary of the Ministry of Home
Affairs as members by a resolution of the Ministry of Home
Affairs Government of India, dated 21st December, 1976.
The above Committee got a quick audit made of the funds
of the Society and the grants given to the Society for
Auroville through a team of competent auditors.
An important finding of this Committee was that the
earlier apprehension about instances of serious
irregularities in the manage
808
ment of the Society, misutilisation of the funds, and the
diversion was confirmed. This Committee also submitted to
the Government of India two volumes of the audit report.
Some of the other important findings of the Committee based
on audit reports were as follows:
“The professional services required from
Architects for the construction of Phase I of Bharat
Niwas were not rendered by them and still full payment
was made to these architects.
Rs. 13.30 lacs sanctioned by various State
Governments for construction of pavillions of their
respective States were diverted and utilised towards
construction in Bharat Niwas for common zone
facilities-this was without the approval of the State
Government.
Whilst the books of Bharat Niwas show that there
was an unutilised balance of Rs. 22.64 lacs the Project
was without any liquid resources-thus showing that
moneys received out of Govt. grants were diverted for
other activities notwithstanding that this position was
brought to the notice of the Society by their statutory
auditor in its letter dated 26.5.76.
Although there was no fresh receipt of steel in
Bharat Niwas Phase 2 the stock was purportely revalued
at a higher rate of Rs 2000 per metric ton against the
earlier rate of Rs. 1700 per metric ton adopted on
31.12.73 This resulted is an over-statement of the
value of stock to the amount of Rs. 42,000/-.
There was a transfer of materials of stock worth
Rs. 2.30 lacs to Auro Stores by a journal entry on
31.12.1975 Auro Stores is a concern of Navjattas. The
audit team concluded that as a result of this there was
an unreal expenditure which had not resulted in outflow
of resources and resulted in overstatement of
expenditure on Bharat Niwas.
An undischarged amount of Rs. 1.45 lacs payable to
the contractors Messrs E.C.C. Ltd. towards the construc
tion of Bharat Niwas stood included in the total
expenditure as on 31.12.74-the utilisation certificates
furnished
809
with regard to total expenditure were held to be
incorrect to that extent.
Although materials purchased out of Govt. grants
could not be hypothecated without the approval of the
Government the Society hypothecated steel from Auro
Stores and obtained a loan of Rs. 6.88 lacs from the
State Bank of India-resulting in an expenditure of
interest charge of Rs. 9561.40 which was held to be
inadmissible and an irregularity.
Although the Society completed construction of
Health Centre in Dec. 1973 at a total cost of over Rs.
2 lacs and the Health Centre started functioning from
Dec. 1973 the Society had not furnished the utilisation
certificates in the prescribed form nor was the
completion report duly certified by the PWD
authorities.
Rs. One lac was stated to have been received for
the Project of World University”-and the money was
stated to be utilised. There is no such World
University in Auroville.
A difference of Rs. 1,29,848/- was noticed in the
case of the value of a piece of land purchased-the
value of the land said to have been purchased and not
entered in the register was Rs. 88,5261/-and the amount
said to have been paid in excess of the value for the
land actually purchased was Rs. 31,322.
The operation of purchase of lands was through
individuals who were given huge sums of money as
advances. It was noticed that in one transaction an
amount of Rs. 43,250/-representing the balance out of
advance paid to one V. Sunderamurthy was adjusted as
being the cost of stamp papers used during 1971. The
said individual had already taken into account the cost
of stamp papers whilst adjusting all other advances
during 1971. The voucher for this amount also did not
give the details of the document numbers in respect of
which stamp papers worth Rs. 43,250/ were used.
810
In 1975-76 land to the extent of 23.86 acres was
purchased at the cost of Rs. 91,496 but was registered
in the names of four individuals and the value of the
lands so registered in individual names were treated as
advances to these individuals. The names of these
individuals were “Maggi”, “Kalit’, “Shyamala” and
“Ravindra Reddy”.
The audit team found that assets and liabilities
of the project were overstated to the extent of Rs.
5,l0,670.
The balance-sheet of Auroville project has been so
framed that the assets side does not throw any light as
to whether the corresponding assets from donations have
been acquired and the problem is aggravated by the fact
that a register of assets is not maintained.
There was a complete lack of financial control
which was the most serious drawback of the system and
this want of financial control was revealed in a number
of established and conventional procedure which would
have serious implications.
It was not possible for the Audit Team to
establish nor the Society could establish that moneys
paid were really exchanged with certain materials or
goods of corresponding value. The lack of adequate
scrutiny resulted in the fact that in most of the cases
the bills were not supported by adequate details of
materials having been passed.
The expenditure of Auroville project working out
to nearly 3 crores, there was no system of control of
expenditure-no rules and regulations or procedures
according to which a particular individual or office
bearer could incur an expenditure only upto a
particular limit and not above that. Persons who were
authorised to operate bank accounts had full authority
to draw as much as they wanted and there was no system
of reporting or feed-back.
In view of the large scale construction
activities, large amounts of stores materials of
various descriptions were being handled by the project.
We have not come across proper records of stores and
stock accounts being maintained by the project, This
indeed was a serious drawback
811
since in the absence of such a system it was not
possible to A verify from the records that the moneys
which were shown as having been spent for purchase of
materials were really paid in exchange of the materials
of the required quantity and quality and whether the
material purchased was actually received by the
project, whether the quantity which was shown as having
been utilised for the construction has been actually so
utilised and the balance of stores which represented by
the value was the real balance representing the various
stock items.
Huge amounts of cash were being handled by persons
operating the main account and the number of
individuals who were given advances-there was no system
under which cash could be verified at any interval.
Even apart from the audit report, one very
important point may be mentioned. The Society has been
claiming that they have been holding more than Rs. 20
lacs in reserve in the account of Aurobindo Society to
meet their obligations with regard to Auroville. And
yet the Society has incurred heavy debts in the name of
Auroville and allocated huge accumulation of interest
to the extent of Rs. 20 lacs.”
The Committee came to the conclusion that the time was
ripe for taking recourse two either of the following two
alternatives:
(a) Incorporation of Sri Auroville Society by a
statute as a society of national importance and
bringing it under Entry 63 of the Union List of
the Seventh Schedule of the Constitution;
(b) Takeover of the management of Auroville project by
the Government for a limited period by legislation
under Art. 31 A(l)(b) of the Constitution.
There was an intensive examination of the Committee’s
report as also of the audit report. All kinds of
possibilities were explored by the Government of India for
remedying the situation including several discussions with
the managers of the Sri Aurobindo Society.
At the same time, it was apparent that the Government
grants which were given for the construction works remained
unutilised and
812
diverted. The construction work itself was stagnant. The
Auroville township had been conceived to be spread over 10
sq. miles (minimum) for about 50,000 people. Considering the
multi-dimensional task, the work which was accomplished by
1976 was not even marginal. It became obvious that the work
had already come to a standstill and that there was not much
prospect of further growth of Auroville.
On a close examination of the audit report certain
clarifications were sought from those at the helm of the
affairs in the Sri Aurobindo Society on various points which
had come to light through the audit report. AD extensive
correspondence on this subject was, therefore, undertaken.
The Government of India received from the Sri Aurobindo
Society answers which were often evasive and which only
confirmed the findings of the Committee’s report and audit
report.
It may also be mentioned that the atmosphere in
Auroville became so bad that it gave rise to law and order
problem. The Government of Tamil Nadu was obliged several
times to promulgate orders under s. 144 Cr. P. C. Even so,
the situation remained so bad that there were about three
instances in which residents of Auroville sustained injuries
because of fighting between groups.
The Government of India examined the charges and
counter charges in detail. Union Education Minister also
paid a visit to Auroville towards the end of October, 1980.
Thus after full consideration of various aspects of the
problem, the Government of India decided to take recourse to
the promulgation of an ordinance. Accordingly, the impugned
ordinance was promulgated on 10th November, 1980.
Mr. K. K. Venugopal, appearing for the petitioners,
however, referred to the decision of the respective
Ministries on the audit report. During October-November,
1979, he contended the Ministry of Education and the
Ministry of Home Affairs took decision on six major points.
One of the points on which decision was taken was that there
were no legal grounds for takeover of Auroville and neither
the Government was interested. This decision, among others
was later on endorsed by the respective Union Ministers. The
report submitted by Mr. P. P. Srivastava, Joint Secretary,
Ministry of Home Affairs, who visited Pondichery and
Auroville on a fact finding
813
mission from 8th to 10th October, 1980, contained the
following A observations:
“All along the view of the Ministry of Home
Affairs has been that there is no case of takeover of
the administration of Auroville. This is an internal
matter and the Government need not interfere. The
Government of Tamil Nadu should be asked to depute two
officers to help the Shri Aurobindo Society for
administering the finances and the administration.”
The contention of Mr. Venugopal is that the audit
report had once been considered and the Government did not
choose to take any further steps on assurance given on the
behalf of the Society that the irregularities pointed out by
the audit report will be rectified and proper management
would be carried out in future. There was absolutely no
reason for Government to have come forward with the proposal
of the impugned ordinance or the impugned Act taking over
the management of the Auroville from the Society. The
circumstances obtaining on the date of the impugned
ordinance or the impugned Act were the relevant
considerations for the enactment. And the earlier report of
the audit which had already been considered by the
Government and the irregularities having been condoned, they
cannot be made the basis for the impugned ordinance or the
Act.
For the respondents, however, it is contended that
despite the assurance given by the office bearers of the
Society nothing tangible had been done and the condition of
the institution was going from bad to worse.
The Government was involved in this case inasmuch as it
was at the instance of the Government that the UNESCO and
other members of UNESCO had generously donated for the
construction of Auroville, the cultural township to the tune
of crores of rupees. It was, therefore, a matter of vital
concern for the Government of India to see that the
donations so generously received from Government of India
and from other States as also from abroad were properly
utilised to carry out the mission of Shri Aurobindo and the
Mother.
In view of the prevailing situation in the Auroville
and the Society the only way to put the management on the
wheels was to take over the management of the institution.
814
It was further contended by Mr. Venugopal that if the
management of the institution had been taken over by the
Government on the ground of mis-management, there could be
other institutions where similar situation might be
prevailing. There should have been a general legislation
rather than singling out Shri Aurobindo Society for hostile
treatment.
The argument cannot be accepted for two reasons.
Firstly, because it has not been pointed out which were the
other institutions where similar situations were prevailing.
Besides, there is a uniqueness with this institution
inasmuch as the Government is also involved. Even a single
institution may be taken as a class. The C: situation
prevailing in the Auroville had converted the dream of the
Mother into a nightmare. There had arisen acute law and
order situation in the Auroville, numerous cases were
pending against various foreigners, the funds meant for the
Auroville had been diverted towards other purposes and the
atmosphere was getting out of hand. In the circumstances the
Government intervened and promulgated the ordinance and
later on substituted it by the impugned enactment. It cannot
be said that it is violative of Article 14 on that account.
We get support for our view from the following decisions.
In Budhan Chowdhury v. The State of Bihar(l) a
Constitution Bench of seven Judges of this Court explained
the true meaning and scope of Article 14 as follows:
“It is now well established that while article 14
forbids class legislation, it does not forbid
reasonable classification for the purposes of
legislation. In order, however, to pass the test of
permissible classification two conditions must be
fulfilled, namely (i) that the classification must be
founded on an intelligible differentia which
distinguishes persons or things that are grouped
together from others left out of the group and, (ii)
that the differentia must have a rational relation to
the object sought to be achieved by the statute in
question. The classification may be founded on
different bases, namely, geographical, or according to
objects or occupation or the like, What is necessary is
that there must be a nexus between the basis of
classification and the object of the Act under
consideration. It is also well established by the
decisions of this Court that
815
article 14 condemns discrimination not only by a
substantive law but also by a law of procedure.”
These observations were quoted with approval by this Court
in Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar
and Ors.(l) In this case the Court further laid down:
“(a) that a law may be constitutional even though it
relates to a single individual if, on account of
some special circumstances or reasons applicable
to him and not applicable to others, that single
individual may be treated as a class by himself;
(b) that there is always a presumption in favour of
the constitutionality of an enactment and the
burden is upon him who attacks it to show that
there has been a clear transgression of the
constitutional principles;
(c) that it must be presumed that the legislature
under stands and correctly appreciates the need of
its own people, that its laws are directed to
problems made manifest by experience and that its
discriminations are based on adequate grounds;
(d) that the legislature is free to recognise degrees
of harm and may confine its restrictions to those
cases where the need is deemed to be the clearest,
(e) that in order to sustain the presumption of consti
tutionality the court may take into consideration
matters of common knowledge, matters of common
report, the history of the times and may assume
every state of facts which can be conceived
existing at the time of legislation; and
(f) that while good faith and knowledge of the
existing conditions on the part of a legislature
are to be presumed, if there is nothing on the
face of the law or the surrounding circumstances
brought to the notice of the court on which the
classification may reasonably be regarded as
based, the presumption of constitutionality cannot
be carried to the extent of
816
always holding that there must be some undisclosed
and unknown reasons for subjecting certain
individuals or corporations to hostile or
discriminating legislation.”
In Ram Prasad Narayan Sahi and Anr. v. The State of
Bihar and ors.(l) the Court of Wards had granted to the
appellant a large area of land belonging to the Bettiah Raj
which was then under the management of the Court of Wards,
on the recommendation of the Board of Revenue, at half the
usual rates. The Bihar Legislature passed an Act called the
Sathi Lands (Restoration) Act, 1950 which declared that,
notwithstanding anything contained in any law for the time
being in force the settlement granted to the appellants
shall be null and void and that no party to the settlement
or his successors in interest shall be deemed to have
acquired any right or incurred any liability thereunder, and
empowered the Collector to eject the appellants if they
refused to restore the lands. The appellants challenged the
constitutionality of the Act under Article 226. This Court
held:
“The dispute between the appellants and the State
was really a private dispute and a matter to be
determined by a judicial tribunal in accordance with
the law applicable to the case, and, as the Legislature
had, in passing the impugned enactment singled out the
appellants and deprived them of their right to have
this dispute adjudicated upon by a duly constituted
Court, the enactment contravened the provisions of
article 14 of the Constitution which guarantees to
every citizen the equal protection of the laws, and was
void.
Legislation which singles out a particular
individual from the fallow subjects and visits him with
a disability which is not imposed upon the others and
against which even the right of complaint is taken away
is highly discriminatory.”
The facts of this case are distinguishable from the case in
hand. In that case the legislation was made only for a
particular person. In the cases in hand on account of the
uniqueness of the institution and on account of the
involvement of the Government and the
817
stake being a high one about public funds, Parliament could
take a particular institution as a class by itself.
In Ram Chandra Deb v. The State of Orrisa(1) Sri
Jagannath Temple Act, 1955 was sought to be challenged being
violative of Article 14 of the Constitution inasmuch as the
legislature had made a separate Act for a particular temple
alone and there were adequate provisions in the Orrisa
Religious Endowments Act, 1951 which was the general Act
applicable to all public temples and religious institutions
and contained adequate provisions to meet all situations
similar contention as raised in the present cases was raised
in that case that a particular temple had been singled out
for hostile discrimination. It was contended that the
Commissioner of Hindu Religious Endowments had ample powers
under the Act to frame a scheme for the proper management of
the temple also and the legislature by enacting a separate
piece of legislation for the temple alone, ignoring the
other temples of Orrisa such as those at Bhubaneswar where
also there might be similar administration, bad contravened
Article 14. This argument was, however, repelled by the
Orrisa High Court with the following observations:
“The principles underlying Art. 14 of the
Constitution have been reiterated in several decisions
of the Supreme Court and it is unnecessary to repeat
them in detail. All that article prohibits is class
legislation and not reason- able classification for the
purpose of legislation so long as such classification
is not arbitrary and “bears a rational relation to the
object sought to be achieved by the statutes in
question”.. In Charanjit Lal v. Union of India (1950
SCR 869) a separate law enacted for one company was
held not to offend Art. 14 of the Constitution on the
ground that there were special reasons for passing
legislation for that company.”
When that case came up in appeal to this Court at the
instance of the son of the petitioner, in Raja Birakishore
v. The State of Orrisa(2) this Court held:
“There is no violation of Art. 14 of the
Constitution. The Jagannath Temple occupies a unique
position in the State of Orrisa and is a temple of
national importance and
818
no other temple in that State can compare with it. It
stands in a class by itself and considering the fact
that it attracts – pilgrims from all over India, in
large numbers, it could be the subject of special
consideration by the State Government. A law may be
constitutional even though it related to a single
individual if on account of special circumstances or
reasons applicable to him and not applicable to others,
that single individual may be treated as a class by him
self.”
It was next contended that there were provisions in the
Societies Registration Act itself to meet the situation
arising in Auroville. There was to necessity for the
impugned ordinance or the enactment. Shri Venugopal referred
to the various provisions of the Societies Registration Act
to show that it was open to the Registrar to call for an
explanation from the Society for any illegality or
irregularity committed by them or if there was a mis-
appropriation of funds,. inasmuch as the Act was a self-
contained Code and there was absolutely no justification for
any ordinance or the enactment. The law and order situation
also could be controlled by resorting to the provisions of
the Code of Criminal Procedure.
Whether the remedies provided under the Societies
Registration Act were sufficient to meet the exigencies of
the situation is not for the Court to decide but it is for
the Government and if the Government thought that the
conditions prevailing in the Auroville and the Society can
be ameliorated not by resorting to the provisions of the
Societies Registration Act but by a special enactment, that
is an area of the Government and not of the Court.
Para 6 of the preamble of the Act gives the reasons for
the enactment. It reads:
“AND whereas pursuant to the complaints received
with regard to mis-use of funds by Shri Aurobindo
Society, a Committee was set up under the Chairmanship
of the Lt. Governor of Pondicherry with representatives
of the Government of Tamil Nadu and of the Ministry of
Home Affairs in the Central Government, and the said
Committee had after detailed scrutiny of the accounts
of Sri Aurobindo Society found instances of serious
irregularities in the management of the said Society,
mis-utilisation of its funds and their diversion to
other purposes.”
819
On the basis of para 6 of the preamble it is argued that the
grounds A given were non-existant at the time of the
impugned ordinance or the enactment and, therefore, the law
made on that basis itself is bad.
We are afraid the argument has no substance. Obviously,
there were serious irregularities in the management of the
said Society as has been pointed out in the earlier part of
the judgment. There has been mis-utilisation of funds and
their diversion to other purposes. This is evident from the
audit report. There was no material change in the situation
on the date of the impugned ordinance or the Act, rather the
situation had grown from bad to worse and the sordid
situation prevailing in the Auroville so pointed out by the
parties fully justified the promulgation of the ordinance
and the passing of the enactment. Of course, each party
tried to apportion the blame on the other. Whosoever be
responsible, the fact remains that the prevailing situation
in the Auroville was far from satisfactory. The amount
donated for the construction of the cultural township
Auroville and other institutions was to the tune of Rs. 3
crores. It was the responsibility of the Government to see
that the amount was not mis-utilised and the management was
properly carried out. So, the basis of the argument that the
facts as pointed out in the preamble were non est is not
correct.
Mr Venugopal tried to explain the various adverse
remarks made by the auditors. On a perusal of the audit
report, which is a voluminous one, all we can say is that on
the facts found by the audit committee, the report is rather
a mild one. There seems to be serious irregularities in the
accounts. A substantial amount received by way of donations
had not been properly spent, there being mis-utilisation and
diversion of the funds.
The Attorney-General appearing for the Union of India
contended that even assuming for the sake of argument, but
not conceding that the facts brought to the notice of the
legislature were wrong, it will not be open to the Court to
hold the Act to be bad on that account.
We find considerable force in this contention. The
Court would not do so even in case of a litigation which has
become final on the ground that the facts or the evidence
produced in the case were not correct. The Parliament had to
apply its mind on the facts before it.
820
The Attorney-General also raised a sort of preliminary
objection on behalf of the Union of India, that in view of
Art. 31A the petitioners could not challenge the Act on the
ground of contravention of Art. 14 of the Constitution. In
so far as it is material for the purposes of this case, Art.
31A reads:
“31A. (I) Notwithstanding anything contained in
article l 3, no law providing for-
(a) …. ………………………………..
(b) the taking over of the management of any property
by the State for a limited period either in the
public interest or in order to assure the proper
management of the property,
(c) ……………………………………..
(d) ……………………………………..
(e) …………………………………….
shall be deemed to be void on the ground that it is
inconsiststent with, or takes away or abridges any of
the rights conferred by article 14 or article 19.”
We find this argument to be plausible but instead of
expressing any concluded opinion on this point we preferred
to deal with the various contentions raised by Mr. Venugopal
on Art. 14 of the Constitution in view of the importance of
the question involved in this case.
A subsidiary point was further submitted by Mr.
Venugopal that no qualifications have been prescribed and,
therefore any person could be appointed as an Administrator.
We can normally assume that the Government would certainly
appoint a responsible person as an administrator especially
when there is a heavy stake in which the Government of India
is also involved inasmuch as at the instance of the
Government the UNESCO gave financial support to the
institution.
It was further submitted that the report of the
Committee was a tainted one as the Chairman, Kulkarni and
the Secretary were parties. There is no foundation for this
submission.
821
We, therefore, hold that the impugned ordinance or the
impugned Act is not violative of Article 14 of the
Constitution.
Now we turn to the last but not the least important
ground of mala fides. The Act is sought to be challenged on
the ground that it is mala fide. This argument is on the
basis that Kirit Joshi, who had his own axe to grind in the
matter, was instrumental in getting the impugned ordinance
and the Act passed. This argument bas been advanced only to
be rejected. Allegations about mala fides are more easily
made than made out. It will be too much to contend that
Kirit Joshi, who was only an Educational Adviser to the
Government of India, Ministry of Education and Culture
(Department of Education), was responsible for the impugned
enactment. The impugned enactment was passed following the
due procedure and merely because he made a complaint about
the situation prevailing in the management of Auroville and
the Society, it cannot be said that the impugned enactment
was passed at his behest.
For the reasons given above all the writ petitions must
fail. In view of the final decision on the writ petitions
themselves, it is not necessary to pass any specific order
in the appeal filed against the interim order in one of the
writ petitions. The parties in the circumstances of the case
are left to bear their own costs.
S. R. Petitions dismissed.
822
