Sastri Yagnapurushadji And … vs Muldas Brudardas Vaishya And … on 14 January, 1966

           PETITIONER:
SASTRI YAGNAPURUSHADJI AND OTHERS

	Vs.

RESPONDENT:
MULDAS BRUDARDAS VAISHYA AND ANOTHER

DATE OF JUDGMENT:
14/01/1966

BENCH:
GAJENDRAGADKAR, P.B. (CJ)
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
HIDAYATULLAH, M.
RAMASWAMI, V.
SATYANARAYANARAJU, P.

CITATION:
 1966 AIR 1119		  1966 SCR  (3) 242
 CITATOR INFO :
 R	    1983 SC   1	 (19,129)
 R	    1984 SC  51	 (8)
 R	    1988 SC1531	 (64)


ACT:
Bombay Hindu Places of Public Worship (Entry  Authorisations
Act (31 of 1956), s. 3-Validity.
Hindu-Who is.
Practice-Vakalanama in favour of an Advocate-Presentation of
appeal by another advocate working in his chambers-If  valid
presentation.



HEADNOTE:
The  appellants, who are the followers of  the	Swaminarayan
sect  and known at Satsangis, filed a  representative  suit:
(i)  for a declaration that the relevant provisions  of	 the
Bombay Harijan Temple Entry Act, 1947, as amended by Act  77
of  1948,  did	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, and  (ii)	 for  an  injunction
restraining  the  1st  respondent  and	other  non  Satsangi
Harijans  from entering the Swaminarayan temple.  The  Trial
Court decreed the suit.	 Pending the 1st respondent's appeal
in the High Court, the Bombay Hindu Places of Public Worship
(Entry	Authorisation) Act, 1956, was passed, and since	 the
1947 Act gave place to the 1956 Act, it became necessary  to
consider  whether  the 1956 Act was intra vires.   The	High
Court allowed the appeal and dismissed the suit holding that
the  followers	of  the Swaminarayan  sect  professed  Hindu
religion  and  that  the Act of	 1956  was  constitutionally
valid.
In appeal to this Court it was contended that : (i) the High
Court  erred  in  treating the 1st  respondent's  appeal  as
competent  when	 the  vakalatnama filed on  his	 behalf	 was
invalid	 (ii)  s. 3 of the 1956 Act was ultra  vires  as  it
contravened  Art. 26(b) of the Constitution; and  (iii)	 the
religion of the Swaminarayan sect was distinct and  separate
from Hindu religion and that therefore the temples belonging
to that sect did not fall within the ambit of the 1956 Act.
HELD:	  (i)  The  appeal to the High	Court  was  properly
presented.
Technically  the  memorandum  of  appeal  presented  by	 the
Assistant Government Pleader on behalf of the 1st respondent
suffered  from	an infirmity, because,	the  1st  respondent
signed the vakalatnama in favour of the Government  Pleader.
But,  since  the Registry had not returned  the	 appeal	 for
correcting  the	 irregularity,	and  since  r.	95  of	 the
Appellate  Side	 Rules	of  the	 High  Court  authorises  an
advocate   to  appear  even  without  initially	  filing   a
vakalatnama,  the  High	 Court was  right  in  allowing	 the
Government Pleader to sign the memorandum of appeal and	 the
vakalatnarna, in order to remove the irregularity. [251 E-G;
252 A-C]
(ii) There  is	no  substance in the contention	 that  s.  3
contravenes Art. 26(b) of the Constitution and is  therefore
ultra vires.
			    243
The right to enter temples which has been vouchsafed to	 the
Harijans by the impugned Act substance symbolises the  right
of Harijans to enjoys all social amenities  and rights, for,
social	justice is the main foundation of   the	  democratic
way  of	 life  enshrined in the	 provisions  of	 the  Indian
Constitution.	After the Constitution came into force,	 the
whole  social and religious outlook of the  Hindu  community
has  undergone	a  fundamental change as  a  result  of	 the
message	 of  social equality and justice proclaimed  by	 the
Constitution; and the solemn promise in Art. 17,  abolishing
untouchability has been gradually, but irresistibly enforced
by  the	 process  of  law  assisted  by	 enlightened  public
conscience.  All that s. 3 of the 1956 Act purports to do is
to give the Harijans the same right to enter the temple	 for
darshan of the deity as can be claimed by the other  Hindus.
The  act  of actual worship of the diety is  allowed  to  be
performed only by the authorised poojaris of the temple	 and
by  no	other  devotee	entering  the  temple  for  darshan.
Therefore, it was nont intended to invade the tradition	 and
conventional manner of performing the actual worship of	 the
idol.
(iii)	  The  High  Court  was	 right	in  coming  to	 the
conclusion  that  the religion of the Swaminarayan  sect  is
not,   distinct	 and  separate	from  Hindu  religion,	 and
consequently,  the  temples belonging to the sect  did	fall
within the ambit of s. 2 of the Act.
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 infinite.  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, and 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	bred
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 excommunicating any notion
or  principle  as heretical and rejecting it as	 such.	 The
development of Hindu religion and philosophy shows that from
time  to  time saints and religious reformers  attempted  to
remove	from  Hindu  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
saintns	 and  religious reformers is  noticeable  a  certain
amount	 of  divergence	 in  their  respective	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  no( worship any one	 God;  it  does	 not
subscribe to any one dogma;it does
244
not  believe  in any one philosophic concept;  it  does	 not
follow	any one set of religious rites or  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,  Jaina
or Buddhist religion.
Philosophically, Swaminarayan was a follower of Ramanuja and
the essence of his teachings is acceptance of the Vedas with
reverence,  recognition of the fact that the path of  Bhakti
or devotion leads to Maksha, insistence or devotion to Loard
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.



JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 517 of 1964.
Appeal from the judgment and decree, dated October 3, 1958
of the Bombay High Court in First Appeal No. 107 of 52.
Vasant J. Desai, M. L. Bhalja and A. G. Ratnaparkhi, for the
appellants.

C. K. Daphtary, Attorney-General, Atiqur Rehman and K. L.
Hathi, for respondent No. 1.

C. K. Daphtary, Attorney-General, N. S. Bindra and B. R.
G. K. Achar, for respondent No. 2.

S. V. Gupte, Solicitor-General, and B. R. G. K. Achar, for
the intervener.

The Judgment of the Court was delivered by
Gajendragadkar, C.J. The principal question which arises in
this appeal is whether the Bombay High Court was right in
holding that the Swaminarayan Sampradaya (sect) to which the
appellants belong, is not a religion distinct and separate
from the Hindu religion, and that the temples belonging to
the said sect do come within the ambit of the provisions of
the Bombay Hindu Places of Public Worship (Entry-
Authorisation) Act, 1956 (No. 31 of 1956) (hereinafter
called ‘the Act’). The suit from which the present appeal
arises was instituted by the appellants on the 12th January,
1948, in the Court of the Joint Civil Judge, Senior
Division, Ahmedabad. Before the suit was instituted, the
Bombay Harijan Temple Entry Act, 1947 (No. 35 of 1947)
245
(Hereinafter called ‘the former Act’) had come into force on
the 23rd November, 1947. The appellants are the followers
of the Swaminarayan sect, and are known as Satsangis. They
have filed the present suit on behalf of themselves and on
behalf of the Satsangis of the Northern Diocese of the sect
at Ahmedabad. They apprehended that respondent No. 1,
Muldas Bhudardas Vaishya, who is the President of the Maha
Gujarat Dalit Sangh at Ahmedabad, intended to assert the
rights of the non-Satsangi Harijans to enter the temples of
the Swaminarayan sect situated in the Northern Diocese at
Ahmedabad in exercise of the legal rights conferred on them
by s. 3 of the former Act of 1947. Section 3 of the said
Act had provided, inter alia, that every temple to which the
Act applied shall be open to Harijans for worship in the
same manner and to the same extent as other Hindus in
general. To this suit the appellants had impleaded five
other respondents, amongst whom was included the Province of
Bombay as respondent No. 4, under the order of the Court at
a later stage of the proceedings on the 18th July, 1949. In
their plaint, the appellants had alleged that the
Swaminarayan temple of Sree Nar Narayan Dev of Ahmedabad and
all the temples subordinate thereto are not temples within
the meaning of the former Act. Their case, was that the
Swaminarayan sect represents a distinct and separate
religious sect unconnected with the Hindus and Hindu
religion, and as such, their temples were outside the
purview of the said Act. On the basis of this main
allegation, the appellants claimed a declaration to the
effect that the relevant provisions of the said Act did not
apply to their temples. In the alternative, it was urged
that the said Act was ultra vires. As a consequence of
these two declarations, the appellants asked for an
injunction restraining respondent No. 1 and other non-
Satsangi Harijans from entering the Swaminarayan temple of
the Northern Diocese of the Swaminarayan sect; and they
prayed that an appropriate injunction should be issued
directing respondents 2 and 3 who are the Mahants of the
said temples to take steps to prevent respondent No. 1 and
the other non-Satsangi Harijans from entering and
worshipping in the said temples.

Pending these proceedings between the parties, the former
Act was amended by Bombay Act No. 77 of 1948; and later, the
Constitution of India came into force on the 26th January,
1950. As a result of these events, the appellants applied
for an amendment of the plaint on the 30th November, 1950,
and the said application was granted by the learned trial
Judge. In consequence of
24 6
this amendment, the appellants took the plea that their
temples were not temples within the meaning of the former
Act as amended by Act No. 77 of 1948; and they urged that
the, former Act was ultra vires the powers of the State of
Bombay inasmuch as it was inconsistent with the Constitution
and the fundamental rights guaranteed therein. It was
contended by them that the Swaminarayan sect was an
institution distinct and different from Hindu religion, and,
therefore, the former Act as amended could not apply to or
affect the temples of the said sect. On this additional
ground, the appellants supported the original claim for
declarations and injunctions made by them in their plaint as
it was originally filed.

This suit was resisted by respondent No. 1. It was urged on
his behalf that the suit was not tenable at law, on the
ground that the Court had no jurisdiction to entertain the
suit under s. 5 of the former Act. Respondent No. 1
disputed the appellants’ right to represent the Satsangis of
the Swaminarayan sect, and he averred. that many Satsangis
were in favour of the Harijans’ entry into the Swaminarayan
temples, even though such Harijans were not the followers of
the Swaminarayan sect. According to him, the suit temples
were temples within the meaning of the former Act as amended
and that non-Satsangi Harijans had a legal right of entry
and worship in the said temples. The appellants’ case that
the former Act was ultra vires, was also challenged by
respondent No. 1. Respondents 2 and 3, the Mahants of the
temples, filed purshis that they did not object to the
appellants’ claim, while respondent No. 4, the State of
Bombay, and respondents 5 and 6 filed no written statements.
On these pleadings, the learned trial Judge framed several
issues, and parties led voluminous documentary and oral
evidence in support of their respective contentions. After
considering this evidence, the learned trial Judge held that
the suit was maintainable and was not barred under s. 5 of
the former Act. He found that the former Act was intra
vires the legislative powers of the Bombay State and did not
infringe any fundamental rights of the appellants.
According to him, the Swaminarayan sect was not distinct and
different from Hindu religion and as such, the suit temples
were temples which were used as places of religious worship
by the congregation of the Satsang which formed a section of
the Hindu community. The learned trial Judge, however, came
to the conclusion that it had not been established that the
suit temples were used by non-Satsangi Hindus as places of
religious worship by custom, usage or otherwise, and
consequently, they did not
247
come within the meaning of the word “temple” as defined by
the former Act. Thus, the conclusion of the learned trial
Judge on this part of the appellants’ case decided the fate
of the suit in their favour, though findings were recorded
by the trial Judge in favour of respondent No. 1 on the
other issues. In the result, the trial court passed a
decree in favour of the appellants giving them declarations
and injunctions as claimed by them. This judgment was
pronounced on the 24th September, 1951.

The proceedings in the trial court were protracted and
lasted for nearly three years, because interim proceedings
which led to certain interlocutory orders, were contested
between the parties and were taken to the High Court on two
occasions before the suit was finally determined.
The decision of the trial court on the merits was challenged
by Respondent No. 4 and respondent No. 1 who joined in
filing the appeal. The appeal thus presented by the two
respondents was heard by the High Court on the 8th March,
1957. At this hearing, two preliminary objections were
raised by the appellants against the competence and
maintainability of the appeal itself. It was urged that the
appeal preferred by respondent No. 4 was not competent,
inasmuch as respondent No. 4 had no locus standi to prefer
the appeal in view of the fact that the former Act in the
validity of which respondent No. 4 was vitally interested
had been held to be valid. This objection was upheld and
the appeal preferred by respondent No. 4 was dismissed.
In regard to the appeal preferred by respondent No. 1, the
appellants contended that the Vakalatnama filed on his
behalf was invalid and as such, the appeal purported to have
been preferred on his behalf was incompetent. It appears
that respondent No. 1 had authorised the Government Pleader
to file an appeal on his behalf, whereas the appeal had
actually been filed by Mr. Daundkar who was then the
Assistant Government Pleader. The High Court rejected this
objection and held that the technical Irregularity on which
the objection was founded could be cured by allowing the
Government Pleader to sign the memorandum of appeal
presented on behalf of respondent No. 1 and endorse
acceptance of his Vakalatnama.

Having thus held that the appeal preferred by respondent No.
1 was competent, the High Court proceeded to consider the
merits of the said appeal. It was urged before the High
Court by respondent No. 1 that the declarations and
injunctions granted to the appellants could not be allowed
to stand in view of the Untouch
10Sup.CI/63–3
248
ability (Offences) Act, 1955 (Central Act 22 of 1955) which
had come into force on the 8th May, 1955 and which had
repealed the former Act. This contention did not find
favour with the High Court, because it took the view that
the declarations and injunctions granted by the trial court
were not based on the provisions of the former Act, but were
based on the view that the rights of the appellants were not
affected by the said Act. The High Court observed that in
dealing with the objections raised by respondent No. 1, it
was unnecessary to consider whether on the merits, the view
taken by the trial court was right or not. The only point
which was relevant for disposing of the said objection was
to consider whether any relief had been granted to
the.appellants under the provisions of the former Act or
not; and since the reliefs granted to the appellants were
not under any of the said provisions, but were in fact based
on the view that the provisions of the said Act did not
apply to the temples in suit, it could not be said that the
said reliefs could not survive the passing of the
Untouchability (Offences) Act, 1955. The High Court,
however, noticed that after the trial court pronounced its
judgments, the Bombay Legislature had passed the Act (No. 31
of 1956) and respondent No. 1 naturally relied upon the
material provisions of this Act contained in s. 3. Thus,
though the substance of the controversy between the parties
remained the same, the field of the dispute was radically
altered. The former Act had given place to the Act and it
now became necessary to consider whether the Act was intra
vires, and if yes, whether it applied to the temples in
suit. Having regard to this altered position, the High
Court took the view that it was necessary to issue a notice
to the Advocate-General under O.27A of the Code of Civil
Procedure. Accordingly, a notice was issued to the Advocate
General and the appeal was placed before the High Court on
the 25th March, 1957 again. At this hearing, the High Court
sent the case back to the trial court for recording a
finding on the issue ” whether the Swaminarayan temple at
Ahmedabad and the temples subordinate thereto are Hindu
religious institutions within the meaning of Art. 25 (2) (b)
of the Constitution”. Both parties were allowed liberty to
lead additional evidence on this issue.

After remand, the appellants did not lead any oral evidence,
but respondent No. 1 examined two witnesses Venibhai and
Keshavlal. Keshavlal failed to appear for his final cross-
examination despite adjournments even though the trial court
had appointed a Commission to record his evidence. Nothing,
however, turned upon this oral evidence. In the remand
proceedings,
249
it was not disputed before the trial court that the temples
in suit were public religious institutions. The only
question which was argued before the court was whether they
could be regarded as Hindu temples or not, The appellants
contended that the suit temples were meant exclusively for
the followers of the Swaminarayan sect; and these followers,
it was urged, did not profess the Hindu religion. The
learned trial Judge, however, adhered to the view already
expressed by his predecessor before remand that the
congregation of Satsang constituted a section of the Hindu
community; and so he found that it was not open to the
appellants to contend before him that the followers of the
Swaminarayan sect were not a section of the Hindu community.
In regard to the nature of the temples, the learned trial
Judge considered the evidence adduced on the record by both
the parties and came to the conclusion that the Swaminarayan
temples at Ahmedabad and the temples subordinate thereto
were Hindu religious institutions within the meaning of Art.
25 (2) (b) of the Constitution. This finding was recorded
by the trial Judge on the 24th March 1958.

After this finding was submitted by the learned trial Judge
to the High Court, the Appeal was taken up for final
disposal. On’ this occasion, it was urged before the High
Court on behalf of the appellants that the members belonging
to the Swaminarayan sect did not profess the Hindu religion
and, therefore, their temples could not be said to be Hindu
temples. It was, however, conceded on their behalf that in
case the High Court came to the conclusion that the
Swaminarayan sect was not a different religion from
Hinduism, the conclusion could not be resisted that the
temples in suit would be Hindu religious institutions and
also places of public worship within the meaning of s. 2 of
the Act. That is how the main question which was
elaborately argued before the High Court was whether the
followers of the Swaminarayan sect could be said to profess
Hindu religion and be regarded as Hindus or not. It was
urged by the appellants that the Satsangis who worship at
the Swaminarayan temple may be Hindus for cultural and
social purposes, but they are not persons professing Hindu
religion, and as such they do not form a section, class or
sect or denomination of Hindu religion. Broadly stated, the
case for the appellants was placed before the High Court on
four grounds. It was argued that Swaminarayan, the founder
of the sect, considered himself as the Supreme God, and as
such. the sect that believes in the divinity of Swaminarayan
cannot be assimilated to the followers of Hindu religion.
It was also urged that the temples in suit had been
established for the worship of
250
Swaminarayan himself and not for the worship of the
traditional Hindu idols, and that again showed that the
Satsangi sect was distinct and separate from Hindu religion.
It was further contended that the sect propagated the ideal
that worship of any God other than Swaminarayan would be a
betrayal of his faith, and lastly , that the Acharyas who
had been appointed by Swaminarayan adopted a procedure of
“Initiation” (diksha) which showed that on initiation, the
devotee became a Satsangi and assumed a distinct and
separate character as a follower of the sect.
The High Court has carefully examined these contentions in
the light of the teachings of Swaminarayan, and has come to
the conclusion that it was impossible to hold that the
followers of the Swaminarayan sect did not profess Hindu
religion and did not form a part of the Hindu community. In
coming to this conclusion, the High Court has also examined
the oral evidence on which the parties relied. While
considering this aspect of the matter, the High Court took
into account the fact that in their plaint itself, the
appellants had described themselves as Hindus and that on
the occasion of previous censuses prior to 1951 when
religion and community used to be indicated in distinct
columns in, the treatment of census data, the followers of
the sect raised no objection to their being described as
belonging to a sect professing Hindu religion.
Having thus rejected the main contention raised by the
appellants in challenging their status as Hindus, the High
Court examined the alternative argument which was urged on
their behalf in regard to the constitutional validity of the
Act. The argument was that the material provision of the
Act was inconsistent with the fundamental rights guaranteed
by Articles 25 and 26 of the Constitution and as such was
invalid. The High Court did not feet impressed by this
argument and felt no difficulty in rejecting it. In the
result, the finding recorded by the trial Judge in favour of
the appellants in regard to their status and character as
followers of the Swaminarayan sect was upheld; inevitably
the decree passed by the trial Judge was vacated and the
suit instituted by the appellants was ordered to be
dismissed. It is against this decree that the present
appeal has been brought to this Court on a certificate
issued by the High Court.

Before dealing with the principal point which has been posed
at the commencement of this Judgment, it is necessary to
dispose of two minor contentions raised by Mr. V. J. Desai
who appeared
251
for the appellants before us. ‘Mr. Desai contends that the
High Court Was in error in treating as competent ‘the appeal
preferred by respondent No. 1. His case is that since the
said appeal had not been duly and validly filed by an
Advocate authorised by respondent No. 1 in that behalf, the
High Court should have dismissed the said appeal as being
incompetent. It will be recalled that the appeal memo as
well as the Vakalatnama filed along with it were signed by
Mr. Daundkar who was then the Asstt. Government Pleader;
and the argument is that since the Vakalatnama had been
signed by respondent No. 1 in favour of the Government
Pleader, its acceptance by the Assistant Government Pleader
was invalid and that rendered the presentation of the appeal
by the Assistant Government Pleader on behalf of respondent
No. 1 incompetent. O.41, r. 1 of the Code of Civil Procedure
requires, inter alia, that every appeal shall be preferred
in the form of a memorandum signed by the appellant or his
Pleader and presented to the Court or to such officer as it
appoints in that behalf. O. 3, r. 4 of the Code relates to
the appointment of a Pleader. Sub-r. (1) of the said Rule
provides, inter alia that no Pleader shall act for any
person in any court unless he has been appointed for the
purpose by such person by a document in writing signed by
such person. Sub-r. (2) adds that every such appointment
shall be filed in court and shall be deemed to be in force
until determined with the leave of the Court in the manner
indicated by it. Technically, it may be conceded that the
memorandum of appeal presented by Mr. Daundkar suffered from
the infirmity that respondent No. 1 had signed his
Vakalatnama in favour of the Government Pleader and Mr.
Daundkar could not have accepted It, though he was working
in the Government Pleader’s office as an Assistant
Government Pleader. Even so, the said memo was accepted by
the office of the Registrar of the Appellate Side of the
High Court, because the Registry regarded the presentation
of the appeal to be proper, the appeal was in due course
admitted and it finally came up for hearing before the High
Court. The failure of the Registry to invite the attention
of the Assistant Government Pleader to the irregularity
committed in the presentation of the said appeal cannot be
said to be irrelevant in dealing with the validity of the
contention raised by the appellants. if the Registry had
returned the appeal to Mr. Daundkar as irregularly
presented, the irregularity could have been immediately
corrected and the Government Pleader would have signed both
the memo of appeal and the Vakalatnama. It is an elementary
rule of justice that no party should suffer for the mistake
of the court or its Office. Besides, one of the rules
framed by the High Court
252
on its Appellate Side-Rule 95-seems to authorise an Advocate
practising on the Appellate Side of the High Court to appear
even without initially filing a Vakalatnama in that behalf.
If an appeal is presented by an Advocate without a
Vakalatnama duly signed by the appellant, he is required to
produce the Vakalatnama authorising him to present the
appeal or to file a statement signed by himself that such
Vakalatnama has been duly signed by the appellant in time.
In this case, the Vakalatnama had evidently been signed by
respondent No. 1 in favour of the Government Pleader in
time; and so, the High Court was plainly right in allowing
the Government Pleader to sign the memo of appeal and the
Vakalatnama in order to remove the irregularity committed in
the presentation of the appeal. We do not think that Mr.
Desai is justified in contending that the High Court was in
error in overruling the objection raised by the appellants
before it that the appeal preferred by respondent No. 1 was
incompetent.

The next contention which Mr. Desai has urged before us is
that s. 3 of the Act is ultra vires. Before dealing with
this contention, it is relevant to refer to the series of
Acts which have been passed by the Bombay Legislature with a
view to remove the disabilities from which the Harijans
suffered. A brief resume of the legislative history on this
topic would be of interest not only in dealing with the
contention raised by Mr. Desai about the invalidity of S. 3,
but in appreciating the sustained and deliberate efforts
which the Legislature has been making to meet the challenge
of untouchability.

In 1958, the Bombay Harijans Temple Worship (Removal of
Disabilities) Act (No. 11 of 193 8) was passed. This Act
represented a somewhat cautious measure adopted by the
Bombay Legislature to deal with the problem of
untouchability. It made an effort to feel the pulse of the
Hindu community in general and to watch its reactions to the
efforts which the Legislature may make, to break through the
citadel of orthodoxy, and conquer traditional prejudices
against Harijans. This Act did not purport to create any
statutory right which Harijans could enforce by claiming an
entry into Hindu temples; it only purported to make some
enabling provisions which would encourage the progressive
elements in the Hindu community to help the Legislature in
combating the evil of untouchability. The basic scheme of
this Act was contained in sections 3, 4 & 5. The substance
of the provisions contained in these sections was that in
regard to temples. the trustees could by a majority make a
declaration that
253
their temples would be open to Harijans notwithstanding the
terms of instrument of trust, the terms of dedication or
decree or order of any competent court or any custom, usage
or law for the time being in force to the contrary. Section
3 dealt with making of these declarations. Section 4
required the publication of the said declarations in the
manner indicated by it, and section 5 authorised persons
interested in the temple in respect of which a declaration
had been published under s. 4 to apply to the court to set
aside the said declaration. If. such an application is
received, the jurisdiction has been conferred on the court
to deal with the said application. Section 5(5) provides
that if the court is satisfied that the applicant was a
person interested in the temple and that the impugned
declaration was shown not to have been validly made, it
shall set aside the declaration; if the court is not so
satisfied, it shall dismiss the application. Section 5(7)
provides that the decision of the Court under sub-s. (5)
shall be final and conclusive for the purposes of this Act.
The court specially empowered to deal with these
applications means the court of a District Judge and
includes the High Court in exercise of its ordinary Original
Civil jurisdiction. The jurisdiction thus conferred on the
court is exclusive with the result that s. 6 bars any Civil
Court to entertain any complaint in respect of the matters
decided by the court of exclusive jurisdiction purporting to
act under the provisions of this Act. This Act can be
regarded as the first step taken by the Bombay Legislature
to remove the disability of untouchability from which
Harijans had been suffering. The object of this Act
obviously was to invite cooperation from the majority of
trustees in the respective Hindu temples in making it
possible for the Harijans to enter the said temples and
offer prayers in them.

Then followed Act No. 10 of 1947 which was passed by the,
Bombay Legislature to provide for the removal of social
disabilities of Harijans. This Act was passed with the
object of removing the several disabilities from which
Harijans suffered in regard to the enjoyment of social,
secular amenities of life. Section 3 of this Act declared
that notwithstanding anything contained in any instrument or
any law, custom or usage to the contrary, no Harijan shall
merely on the ground that he is a Harijan, be ineligible for
office under any authority constituted under any law or be
prevented from enjoying the amenities described by clauses

(b) (i) to (vii). The other sections of this Act made
suitable provisions to enforce the statutory right conferred
on the Harijans by s. 3.

254

Next we come to the former Act-No. 35 of 1947. We haveA
already seen that when the present plaint was filed by the
appellants, they challenged the right of the non-satsangi
Harijans to enter the temples under S. 3 of this Act, and
alternatively, they challenged its validity. This Act was
passed to entitle the Harijans to enter and perform
worship in the temples in the Province of Bombay. Section
2(a) of this Act defines a “Harijan” as meaning a member
of a caste, race or tribe deemed to be a Scheduled caste
under the Government of India (Scheduled Castes) Order,
1936. Section 2(b) defines “Hindus” as including Jains; S.
2(c) defines “temples’ as meaning a place by whatever
designation known which is used as of right by, dedicated to
or for the benefit of the Hindus in general other than
Harijans as a place of public religious worship; and S.
2(b) defines “Worship” as including attendance at a temple
for the purpose of darshan’ of a deity or deities installed
in or within the precincts thereof. Section 3 which
contains the main operative provision of this Act reads
thus :-

“Notwithstanding anything contained in the
terms of any instruments of trust, the terms
of dedication, the terms of a sanad or a
decree or order of a competent court or any
custom, usage or law, for the time, being in force
to the contrary every temple shall be open to Hari
jans
for worship in the same manner and to the same
extent as to any member of the Hindu community
or any section thereof and the Harijans shall
be entitled to bathe in, or use the waters
of any sacred tank, well, spring or water-
course in the same manner and to the same
extent as any member of the Hindu Community
or any section thereof.”

Section 4 provides for penalties. Section 5 excludes
the jurisdiction of Civil Courts to deal with any suit or
proceeding if it involves a claim which if granted would in
any way be inconsistent with the;provisions of this Act.
Section 6 authorises the police officer not below the rank
of Sub-Inspector to arrest without warrant any person who
;is reasonably suspected of having committed an offence
punishable under this Act.

Section 2(c) of the former Act was later amended by Act
77 of 1948. The definition of the word “temple” which was
thus inserted by the amending Act -reads thus :-
“Temple, means a place by whatever name known and
to whomsoever belonging, which is used as a
place
2 5 5
of religious worship by custom, usage or
otherwise by the members of the Hindu
community or any section thereof and includes
all land appurtenant thereto and subsidiary
shrines attached to any such place.”

It will be recalled that after this amended definition was
introduced in the former Act, the appellants asked for and
obtained permission to amend their plaint, and it is the
claim made in the amended plaint by relation to the new
definition of the word “temple” that parties led evidence
before the trial court. This act shows that the Bombay
Legislature took the next step in 1947 and made a positive
contribution to the satisfactory solution of the problem of
untouchability. It conferred on the Harijans a right to
enter temples to which the Act applied and to offer worship
in them; and we have already seen that worship includes
attendance at the temple for the purpose of darshan of a
deity or deities in the precincts thereof.
On the 26th January, 1950 the Constitution of India came
into force, and Art. 17 of the Constitution categorically
provided that untouchability is abolished and its practice
in any form is forbidden. The enforcement of any disability
arising out of “Untouchability” shall be an offence
punishable in accordance with law. In a sense, the
fundamental right declared by Art, 17 afforded full
justification for the policy underlying the provisions of
the former Act.

After the Constitution was thus adopted, the-Central
Legislature passed the Untouchability (Offences) Act, 1955
(No. 22 of 1955). This Act makes a comprehensive provision
for giving effect to the solemn declaration made by Art. 17
of the Constitution. It extends not -only to places of
public worship, but to hotels, places of public
entertainment, and shops as defined by s. 2 (a), (b), (c)
and (e). Section 2 (d) of this Act defines a “place of
public worship” as meaning a place by whatever name known
which is used as a place of public religious worship or
which is dedicated generally to, or is used generally by,
persons professing any religion-or belonging to any
religious denomination or any section thereof, for ‘the
performance of any religious service, or for offering
prayers therein; and includes all lands and subsidiary
shrines appurtenant or attached to any such place. The
sweep of ‘the definitions prescribed by section 2 indicates
the very broad field of socio-religious activities over
which the mandatory provisions of this Act are intended to
operate. It is not necessary for our purpose to refer to
the provisions of this Act in detail. ‘It is enough to
state that ss. 3 to 7 of this Act provide
25 6
different punishments for contravention of the
constitutional guarantee for the removal of untouchability
in any shape or form. Having thus prescribed a
comprehensive statutory code for the removal of
untouchability, s. 17 of this Act repealed twenty one State
Acts which had been passed by the several State Legislatures
with the same object. Amongst the Acts thus repealed are
Bombay Acts 10 of 1947 and 35 of 1947.

That takes us to the Act No. 31 of 1956-with which we are
directly concerned in the present appeal. After the Central
Act 22 of 1955 was passed ‘and the relevant Bombay statutes
of 1947 had been repealed by S. 17 of that Act, the Bombay
Legislature passed the Act. The Act is intended to make
better provision for the throwing open of places of public
worship to all classes and sections of Hindus. It is a
short Act contain 8 sections. Section 2 which is the
definition section is very important; it reads thus :-

“2. In this Act, unless the context otherwise requir
es,-

(a)”place of public worship’ means a place,
whether a temple or by any other name called,
to whomsoever belonging which is dedicated to,
or for the benefit of, or is used generally
by, Hindus, Jains, Sikhs or Buddhists or any
section or class thereof, for the performance
of any religious service or for offering
prayers therein; and includes all lands and
subsidiary shrines appurtenant or attached to
any such place, and also any sacred tanks,
walls, springs, and water courses the waters
of which are worshipped, or are used for
bathing or for worship;

(b)”section” or “class” of Hindus includes any
division, sub-division, caste, sub-caste, sect
or denomination whatsoever of Hindus.”
Section 3 is the operative provision of the
Act and it is necessary to read it also :
“3. Notwithstanding any custom, usage or law
for the time being in force, or the decree or
order of a court, or anything contained in any
instrument, to the contrary, every place of
public worship which is open to Hindus
generally, or to any section or class thereof,
shall be open to all sections and classes or
Hindus; and no Hindu of whatsoever section or
class, shall in any manner be prevented,
obstructed or discouraged from entering such
place of public worship, or from worship-

257

ping or offering prayers threat, or performing
any religious service therein, in the like
manner and to the like extent as any other
Hindu of whatsoever section or class may so
enter, worship, pray or perform.”

Section 4(1) provides for penalties for the contravention of
the provisions of the Act and s. 4(2) lays down that nothing
in this section shall be taken to relate to offences
relating to the practice of “untouchability”. Section 5
deals with the abetment of offences prescribed by s. 4(1).
Section 6 provides, inter alia, that no Civil Court shall
pass any decree or order which in substance would in any way
be contrary to the provisions of this Act. Section 7 makes
offences prescribed by s. 4(1) cognisable, and compoundable
with the permission of the Court; and s. 8 provides that the
provisions of this Act shall not be taken to be in
derogation of any of the provisions of the Untouchability
(Offences) Act-22 of 1955-or any other law for the time
being in force relating to any of the matters dealt with in
this Act. That in brief is the outline of the history of
the Legislative efforts to combat and meet the problem of
untouchability and to help Harijans to secure the full
enjoyment of all rights guaranteed to them by Art. 17 of the
Constitution.

Let us now revert to Mr. Desai’s argument that s. 3 of the
Act is invalid inasmuch as it contravenes the appellants’
fundamental rights guaranteed by Art. 26 of the
Constitution. Section 3 throws open the Hindu temples to
all classes and sections of Hindus and it puts an end to any
effort to prevent or obstruct or discourage Harijans from
entering a place of public worship or from worshipping or
offering prayers threat, or performing any religious service
therein, in the like manner and to the like extent as any
other Hindu of whatsoever section or class may so enter,
worship, pray or perform. The object of the section and its
meaning are absolutely clear. In the matter of entering the
Hindu temple or worshipping, praying or performing any
religious service therein, there shall be no discrimination
between any classes or sections of Hindus, and others. In
other words, no Hindu temple shall obstruct a Harijan for
entering the temple or worshipping in the temple or praying
in it or performing any religious service therein in the
same manner and to the same extent as any other Hindu would
be permitted to do.

Mr. Desai contends that in the temples, in suit, even the
Satsangi Hindus are not permitted to enter the innermost
sacred part of the temple where the idols are installed. It
is only the Poojaris who are authorised to enter the said
sacred portion of the
258
temples and do the actual worship of the idols by touching
the idols for the purpose of giving a bath to the idols,
dressing the idols, offering garlands to the idols and doing
all other ceremonial rites prescribed by the Swaminarayan
tradition and convention; and his grievance is that the
words used in S. 3 are so wide that even this part of actual
worship of the idols which is reserved for the Poojaris and
specially authorised class of worshippers, may be claimed by
respondent No. 1 and his followers; and in so far as such a
claim appears to be justified by s. 3 of the Act, it con-
travenes the provisions of Art. 26(b) of the Constitution.
Art. 26(b) provides that subject to public order, morality
and health, every religious denomination or any section
thereof shall have the right to manage its own affairs in
matters of religion, and so, the contention is that the
traditional conventional manner of performing the actual
worship of the idols would be invaded if the broad words of
S. 3 are construed to confer on non-Satsangi Harijans a
right to enter the innermost sanctuary of the temples and
seek to perform that part of worship which even Satsangi
Hindus are not permitted to do.

In our opinion, this contention is misconceived. In the
first place it is significant that no such plea was made or
could have been made in the plaint, because s. 3 of the
former Act which was initially challenged by the appellants
had expressly defined ” worship” as including a right to
attend a temple for the purpose of darshan of a deity or
deities in or within the precincts thereof, and the cause of
action set out by the appellants in their plaint was ‘hat
they apprehended that respondent No. 1 and his followers
would enter the temple and seek to obtain darshan of the
deity installed in it. Therefore, it would not be
legitimate for the appellants to raise this new contention
for the first time when they find that the words used in s.
3 of the Act are somewhat wider than the words used in the
corresponding section of the former Act.

Besides, on the merits, we do not think that by enacting s.
3, the Bombay Legislature intended to invade the traditional
and conventional manner in which the act of actual worship
of the -deity is allowed to be performed only by the
authorised Poojaris of the temple and by no other devotee
entering the temple for darshan. In many Hindu temples, the
act of actual worship is entrusted to the authorised
Poojaris and all the devotees are allowed to enter the
temple up to a limit beyond which entry is barred :to them,
the innermost portion of the temple being reserved only for
the authorised Poojaris of the temple. If that
259
is so, then all that s. 3 purports to do is to give the
Harijans the same right to enter the temple for ‘darshan’ of
the deity as can be claimed by the other Hindus. It would
be noticed that the right to enter the temple, to worship in
the temple, to pray in it or to perform any religious
service therein which has been conferred by s. 3, is
specifically qualified by the clause that the said right
will be enjoyed in the like manner and to the like extent as
any other Hindu of whatsoever section or class may do. The
main object of the section is to establish complete social
equality between all sections of the Hindus in the matter of
worship specified by s. 3; and so, the apprehension on which
Mr. Desai’s argument is based must be held to be
misconceived. We are, therefore, satisfied that there is no
substance in the contention that s. 3 of the Act is ultra
vires.

That takes us to the main controversy between the parties.
Are the appellants justified in contending that the
Swaminarayan sect is a religion distinct and separate from
the Hindu religion, and consequently, the temples belonging
to the said sect do not fall within the ambit of s. 3 of the
Act ? In attempting to answer this question, we must
inevitably enquire what are the distinctive features of
Hindu -religion? The consideration of this question, prima
facie, appears to be somewhat inappropriate within the
limits of judicial enquiry in a court of law. It is true
that the appellants seek for reliefs in the present
litigation on the ground that their civil rights to manage
their temples according to the religious tenets are
contravened; and so, the Court is bound to deal with the
controversy as best as it can. The issue raised between the
parties is undoubtedly justiciable and has to be considered
as such; but in doing so, we cannot ignore the fact that the
problem posed by the issue, though secular in character, is
very complex to determine; its decision would depend on
social, sociological, historical, religious and
philosophical considerations; and when it is remembered that
the development and growth of Hindu religion spreads over a
large period nearly 4,000 years, the complexity of the
problem would at once become patent.

Who are Hindus and what are the broad features of Hindu
religion, that must be the first part of our enquiry in
dealing with the present controversy between the parties.
The historical and etymological genesis of the word “Hindu,’
has given rise to a controversy amongst indologists; but the
view generally accepted by scholars appears to be that the
word “Hindu” is derived from the river Sindhu otherwise
known as Indus which flows from the Punjab. “That part of
the great Aryan race”, says Monier
260
Williams, “which immigrated from Central Asia, through the
mountain passes into India, settled first in the districts
near the river Sindhu (now called the Indus). The Persians
pronounced this word Hindu and named their Aryan brethren
Hindus. The Greeks, who probably gained their first ideas
of India from the Persians, dropped the hard aspirate, and
called the Hindus “Indoi”. (1).”

The Encyclopaedia of Religion and Ethics, Vol. VI, has
described “Hinduism” as the title applied to that form of
religion which prevails among the vast majority of the
present population of the Indian Empire (p. 686). As Dr.
Radhakrishnan has observed; “The Hindu civilization is so
called, since its original founders or earliest followers
occupied the territory drained by the Sindhu (the Indus)
river system corresponding to the North West Frontier
Province and the Punjab. This is recorded in the Rig Veda,
the oldest of the Vedas, the Hindu scriptures which give
their name to this period Indian history. The people on the
Indian side of the Sindhu were called Hindu by the Persian
and the later western invaders”.(2) That is the genesis of
the word “Hindu”.

When we think of the Hindu religion, we find it difficult,
if not impossible, to define Hindu religion or even
adequately describe it. Unlike other religions in the
world, the Hindu religion does not claim any one prophet; it
does not worship any one God; it does not subscribe to any
one dogma; it does not believe in any one philosophic
concept; it does not follow any one set of religious rites
or performances; in fact, it does not appear to satisfy the
narrow traditional features of any religion or creed. It
may broadly be described as a way of life and nothing more.
Confronted by this difficulty, Dr. Radhakrishnan realised
that “to many Hinduism seems to be a name without any
content. Is it a museum of beliefs, a medley of rites, or a
mere map, a geographical expression?”(3) Having posed these
questions which disturbed foreigners when they think of
Hinduism, Dr. Radhakrishnan has explained how Hinduism has
steadily absorbed the customs and ideas of peoples with whom
it has come into contact and has thus been able to maintain
its supremacy and its youth. The term ‘Hindu’, according to
Dr. Radhakrishnan, had originally a territorial and not a
credal significance. It implied residence in a well-defined
geographical area. Aboriginal tribes,
(1) “Hinduism” by Monier Williams, p. 1.

(2) “The Hindu View of Life” by Dr. Radhakrishnan, p. 12.
(3) Ibid p. 11.

261

savage and half-civilized people, the cultured Dravidians
and the Vedic Aryans were all Hindus as they were the sons
of the same mother. The Hindu thinkers reckoned with the
striking fact that the men and women dwelling in India
belonged to different communities, worshipped different
gods, and practised different rites (Kurma Purana)(1).
Monier Williams has observed that “it must be borne in mind
that Hinduism is far more than a mere form of theism resting
on Brahmanism. It presents for our investigation a complex
congeries of creeds and doctrines which in its gradual
accumulation may be compared to the gathering together of
the mighty volume of the Ganges, swollen by a continual
influx of tributary rivers and rivulets, spreading itself
over an ever-increasing area of country and finally
resolving itself into an intricate Delta of tortuous steams
and jungly marshes…….. The Hindu religion is a
reflection of the composite character of the Hindus, who are
not one people but many. It is based on the idea of
universal receptivity. It has ever aimed at accommodating
itself to circumstances, and has carried on the process of
adaptation through more than three thousand years. It has
first borne with and then, so to speak, swallowed, digested,
and assimilated something from all creeds.”(2)
We have already indicated that the usual tests which can be
applied in relation to any recognised religion or religious
creed in the world turn out to be inadequate in dealing with
the problem of Hindu religion. Normally, any recognised
religion or religious creed subscribes to a body of set
philosophic concepts and theological beliefs. Does this
test apply to the Hindu religion ? In answering this
question, we would base ourselves mainly on the exposition
of the problem by Dr. Radhakrishnan in his work on Indian
Philosophy. (3) Unlike other countries, India can claim that
philosophy in ancient India was not an auxiliary to any
other science or art, but always held a prominent position
of independence. The Mundaka Upanisad speaks of Brahma-
vidya or the science of the eternal as the basis of all
sciences, ‘sarva-vidyapratishtha’. According to Kautilya,
“Philosophy” is the lamp of all the sciences, the means of
performing all the works, and the support of all the duties.
“In all the fleeting centuries of history”, says Dr.
Radhakrishnan, “in all the vicissitudes through which India
has passed, a certain marked identity is visible. It has
held fast to certain psychological traits which constitute
its special
(1) lbid p. 12.

(2) “Religious Thought & Life In India” by Monier Williams,
p. 57.

(3) “Indian Philosophy” by Dr. Radhakrishrian, Vol. 1, pp.
22-23.

262

heritage, and they will be the characteristic marks of the
Indian people so long as they are privileged to have a
separate existence”. The history of Indian thought
emphatically brings out the fact that the development of
Hindu religion has always been inspired by an endless quest
of the mind for truth based on the consciousness that truth
has many facets. Truth is one, but wise men describe it
differently.(1) 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. “If we can abstract from the variety of
opinion”, says Dr. Radhakrishnan, “and observe the general
spirit of Indian thought, we shall find that it has a
disposition to interpret life and nature in the way of
monistic idealism, though this tendency is so plastic,
living and manifold that it takes many forms and expresses
itself in even mutually hostile teachings”.(2)
The monistic idealism which can be said to be the general
distinguishing feature of Hindu Philosophy has been
expressed in four different forms : (1) Non-dualism or
Advitism; (2) Pure monism: (3) Modified monism; and (4)
Implicit monism. It is remarkable that these different
forms of monistic idealism purport to derive support from
the same vedic and Upanishadic texts. Shankar, Ramanuja,
Vallabha and Madhva all based their philosophic concepts on
what they regarded to be the synthesis between the
Upanishads, the Brahmasutras and the Bhagavad Gita. Though
philosophic concepts and principles evolved by different
Hindu thinkers and philosophers varied in many ways and even
appeared to conflict with each other in some particulars,
they all had reverence for the past and accepted the Vedas
as the sole foundation of the Hindu philosophy. Naturally
enough, 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 bred
a spirit of tolerance and willingness to understand and
appreciate the opponents point of view. That is how “the
several views set forth in India in regard to the vital
philosophic concepts are considered to be the branches of
the self-same tree. The short cuts and blind alleys are
somehow reconciled with the main road of advance to the
truth.”(3) When we consider this broad sweep of the Hindu
philosophic concepts, it would be realised that under Hindu
philosophy, there is no scope for ex-

(2) lbid, p. 32. (3) lbid P. 48.

263

communicating any notion or principle as heretical and
rejecting it as such.

Max Muller who was a great oriental scholar of his time was
impressed by this comprehensive and all-pervasive aspect of
the s`weep of Hindu philosophy. Referring to the six
systems known to Hindu philosophy, Max Muller observed: “The
longer I have studied the various systems, the more have I
become impressed with the truth of the view taken by
Vijnanabhiksu and others that there is behind the variety of
the six systems a common fund of what may be called national
or popular philosophy, a large manasa (lake) of
philosophical thought and language far away in the distant
North and in the distant past, from which each thinker was
allowed to draw for his own purposes”.(1)
Beneath the diversity of philosophic thoughts, concepts and
ideas expressed by Hindu philosophers who started different
philosophic schools, lie certain broad concepts which can be
treated as basic. The first amongst these basic concepts is
the acceptance of the Veda 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 Veda. The Hindu teachers were thus obliged to use the
heritage they received from the past in order to make their
views readily understood. The other basic concept which is
common to the six systems of Hindu philosophy is that “all
of them accept the view of the great world rhythm. Vast
periods of creation, maintenance and dissolution follow each
other in endless succession. This theory is not
inconsistent with, belief in progress; for it is not a
question of the movement of the world reaching its goal
times without number, and being again forced back to its
starting point…… It means that the race of man enters
upon and retravels its ascending path of realisation. This
interminable succession of world ages has no beginning(2) It
may also be said that all the systems of Hindu philosophy
believe in rebirth and pre-existence. “Our life is a step
on a road, the direction and goal of which are lost in the
infinite. On this road, death is never an end of an
obstacle but at most the beginning of new steps”.(8) Thus,
it is clear that unlike other religions and religious
creeds, Hindu religion is not tied to any definite set of
philosophic concepts as such.

Do the Hindus worship at their temples the same set or
number of gods ? That is another question which can be asked
in this
(1) “Six Systems of Indian Philosophy” by Max Muller p.
xvii.

(2) In Philosophy” by Dr. Radhakrishnan, Vol. IT., V.

26

(3)idib.

L10 Sup. C.I./6″

2 64
connection; and the answer to this question again has to be
in the negative. Indeed, there are certain sections of the
Hindu community which do not believe in the worship of
idols; and as regards those sections of the Hindu community
which believe in the worship of idols, their idols differ
from community to community and it cannot be said that one
definite idol or a definite number of idols are worshipped
by all the Hindus in general. In the Hindu Pantheon the
first gods that were worshipped in Vedic times were mainly
Indra, Varuna, Vayu and Agni. Later, Brahma, Vishnu and
Mahesh came to be worshipped. In course ,of time, Rama and
Krishna secured a place of pride in the Hindu Pantheon, and
gradually as different philosophic concepts held sway in
different sects and in different sections of the Hindu
,community, a large number of gods were added, with the
result that today, the Hindu Pantheon presents the spectacle
of a very large number of gods who are worshipped by
different sections ,of the Hindus.

The development of Hindu religion and philosophy shows that
from time to time saints and religious reformers attempted
to remove from the Hindu thought and practices elements of
corruption and superstition and that led to the formation of
different sects. Buddha started Buddhism; Mahavir founded
Jainism; Basava became the founder of Lingayat religion,
Dnyaneshwar and Tuk-aram initiated the Varakari cult; Guru
Nank inspired Sikhism; Dayananda founded Arya Samaj, and
Chaitanya began Bhakti cult; and as a result of the
teachings of Ramakrishna and Viveka-nanda, Hindu religion
flowered into its most attractive, progressive and dynamic
form. If we study the teachings of these saints and
religious reformers, we would notice an amount of divergence
in their respective views; but underneath that divergence,
there is a kind of subtle indescribable unity which keeps
them within the sweep of the broad and progressive Hindu
religion.

There are some remarkable features of the teachings of these
saints and religious reformers. All of them revolted
against the dominance of rituals and the power of the
priestly class with which it came to be associated; and all
of them proclaimed their teachings not in Sanskrit which was
the monopoly of the priestly class, but in the languages
spoken by the ordinary mass of people in their respective
regions.

Whilst we are dealing with this broad and comprehensive
,aspect of Hindu religion, it may be permissible to enquire
what, :according to this religion, is the ultimate goal of
humanity? It
265
is the release and freedom from the unceasing cycle of
births and rebirths; Moksha or Nirvana, which is the
ultimate aim of Hindu religion and philosophy, represents
the state of absolute absorption and assimilation of the
individual soul with the infinite. What are the means to
attain this end ? On this vital issue, there is great
divergence of views; some emphasise the importance of Gyan
or knowledge, while others extol the virtues of Bhakti or
devotion; and yet others insist upon the paramount
importance of the performance of duties with a heart full of
devotion and mind inspired by true knowledge. In this
sphere again, there is diversity of opinion, though all are
agreed about the ultimate goal. Therefore, it would be
inappropriate to apply the traditional tests in determining
the extent of the jurisdiction of Hindu religion. It can be
safely described as a way of life based on certain basic
concepts to which we have already referred.
Tilak faced this complex and difficult problem of defining
or at least describing adequately Hindu religion and he
evolved a working formula which may be regarded as fairly
adequate and satisfactory. Said Tilak : “Acceptance of the
Vedas with reverence; recognition of the fact that the means
or ways to salvation are diverse and realisation of the
truth that the number of gods to be worshipped is large,
that indeed is the distinguishing feature of Hindu
religion”(1). This definition brings out succinctly the
broad distinctive features of Hindu religion. It is
somewhat remarkable that this broad sweep of Hindu religion
has been eloquently described by Toynbee. Says Toynbee :
“When we pass from the plane of social practice to the plane
of intellectual outlook, Hinduism too comes out well by
comparison with the religions and ideologies of the South-
West Asian group. In contrast to these Hinduism has the
same outlook as the pre-Christian and pre-Muslim religions
and philosophies of the Western half of the old world. Like
them, Hinduism takes it for granted that there is more than
one valid approach to truth and to salvation and that these
different approaches are not only compatible with each
other, but are complementary”(2).

The Constitution-makers were fully conscious of this broad
and comprehensive character of Hindu religion; and so, while
guaranteeing the fundamental right to freedom of religion,
Explanation II to Art. 25 has made it clear that in sub-
clause (b) of clause (2), the reference to Hindus shall be
construed as
(B.G.Tilak’s”Gitarahasya”)
(2) “The Present-Day Experiment in Western Civilisation” by
Toynbee, pp. 48-49.

266

including a reference to persons professing the Sikh, Jaina
or Buddhist religion, and the reference to Hindu religious
institutions shall be construed accordingly.
Consistently with this constitutional provision, the Hindu
Marriage Act, 1955; the Hindu Succession Act, 1956; the
Hindu Minority and Guardianship Act, 1956; and the Hindu
Adoptions and Maintenance Act, 1956 have extended the
application of these Acts to all persons who can be regarded
as Hindus in this broad and comprehensive sense. Section 2
of the, Hindu Marriage Act, for instance, provides that this
Act applies-

(a)to any person who is a Hindu by religion in
any of its forms or developments, including a
Virashaiva, a Lingayat or a follower of the
Brahmo, Prarthana or Arya Samaj,

(b)to any person who is a Buddhist, Jaina, or
Sikh by religion, and

(c)to any other person domiciled in the
territories to which this Act extends who is
not a Muslim, Christian, Parsi or Jew by
religion, unless it is proved that any such
person would not have been governed by the
Hindu law or by any custom or usage as part of
that law in respect of any of the matters
dealt with herein if this Act had not been
passed.

The same provision is made in the other three Acts to which
we have just referred.

It is in the light of this position that we must now proceed
to consider whether the philosophy and theology of
Swaminarayan show that the school of Swaminarayan
constitutes a distinct and separate -religion which is not a
part of Hindu religion. Do the followers of the said sect
fall outside the Hindu brotherhood, that is the crux of the
problem which we have to face in the present appeal. In
deciding this question, it is necessary to consider broadly
the philosophic and theological tenets of Swaminarayan and
the characteristics which marked the followers of Swami
narayan who are otherwise known as Satsangis.
In dealing with this aspect of the problem, it would be safe
to rely upon the data furnished by Monier Williams in his
book “Religious thought and life in India” (1883). It is
hardly necessary to emphasise that Monier Williams played a
very important role in explaining the religious thought and
life in India to the English-speaking world outside India.
“Having been a
2 67
student of Indian sacred literature for more than forty
years,” observed Monier Williams “and having twice travelled
over every part of India, from Bombay to Calcutta, from
Cashmere to Ceylon, I may possibly hope to make a dry
subject fairly attractive without any serious sacrifice of
scientific accuracy, while at the same time it will be my
earnest endeavour to hold the scales impartially between
antagonistic religious systems and as far as possible to do
justice to the amount of truth that each may contain” (P.

1). It is remarkable tribute to the scholarship of Monier
Williams and of his devotion to the mission which he had
undertaken that though his book was written as early as
1883, it is still regarded as a valuable source of
information in dealing with problems connected with the
religious thought and life in India.

Let us then refer briefly to the life story of Swaminarayan
for that would help us to understand and appreciate the
significance of his philosophic and religious teachings.
The original name of Swaminarayan was Sahajananda. By
birth, he was a high-caste Brahaman. He was born at Chapai,
a village 120 miles to the North-west of Lucknow, about the
year 1780. He was born to Vaishnava parents, but early in
his career he was “disgusted with the manner of life of the
so-called followers of Vallabhacharya, whose precepts and
practice were utterly at variance, and especially with the
licentious habits of the Bombay Maharajas.” He was then
determined to denounce these irregularities and expose the
vices that had crept into the lives of the Bombay Maharajas.
Swaminarayan was a celibate and he “lived an ascetical, yet
withal a large-hearted and philanthropic, life” and the
showed a great aptitude for learning. In 1800, he left his
home and placed himself under the protection of the chief
Guru, named Ramananda Swami at a village within the
jurisdiction of the Junagarh Nawab. When Ramananda Swami
removed to Ahmedabad in 1804, Sahajananda followed him.
Soon Sahajananda collected around him a little band of
disciples, which rapidly grew “into an army of devoted
adherents”. That naturally provoked the wrath of the
orthodox Brahmans and magnates of Ahmedabad who began to
persecute him. That drove Sahajananda to Jetalpur, 12 miles
south of Ahmedabad, which became the, focus of a great
religious gathering. Thousands of people were attracted by
this young religious teacher who now took the name of
Swaminarayan. Swaminarayan then retired to the secluded
village of Wartal, where he erected a temple to Narayana
(otherwise Krishna, or Vishnu, as the Supreme Being)
associated with the goddess Lakshmi. From this Central
scene of his religious activities, Swaminarayan mounted a
strong crusade
2 68
against the licentious habits of the gurus of the
Vallabhacharya sect. His watchword was “devotion to Krishna
with observance of, duty and purity of life”. The two
principal temples of the Swaminarayan sect are at Wartal,
which is about four miles to the west of the Baroda railway
station, and at Ahmedabad.

In about 1826-27, a formal constitution of the sect appears
to have been prepared; it is known as the ‘Iekh’ or the
document for the apportionment of territory (Deshvibhaga
Lekh). By this document, Swaminarayan divided India into
two parts by a national line running from Calcutta to
Navangar and established dioceses, the northern one with the
temple of Nar Narayan at Ahmedabad, and the southern one
which included the temple of Lakshminarayan at Wartal. To
preside over these two dioceses Swaminarayan adopted his two
nephews Ayodhyaprasad and Raghuvir respectively.
Subordinate to these Gadis and the principal temples, two
score large temples and over a thousand smaller temples
scattered all over the country came to be built in due
course.

The Constitution of the Swaminarayan sect and its tenets and
practices are collected in four different scriptures of the
faith viz., (1) the “Lekh” to which we have just referred;
(2) the “Shikahapatri” which was originally written by
Swaminarayan himself in about 1826 A.D.; the original
manuscript does not appear to be available, but the
Shikshapatri was subsequently rendered into Sanskrit verses
by Shatanandswami under the directions of Swaminarayan
himself. This Sanskrit translation is treated by the
followers of Swaminarayan as authentic. This book was later
translated into Gujarati by another disciple named
Nityanand. This Shikshapatri is held in high reverence by
the followers of the faith as a prayer book and it contains
summary of Swaminarayan’s instructions and principles which
have to be followed by his disciples in their lives; (3) the
“Satsangijiwan” which consists of five parts and is written
in Sanskrit by Shathnand during the lifetime of
Swaminarayan. This work gives an account of the life and
teachings of Swaminarayan. It appears to have been
completed in about 1829. Shikshapatri has been bodily in-
corporated in this work; (4) the “Vachanamrit” which is a
collection of Swaminarayan’s sermons in Gujarati. This
appears to have been prepared between 1828 and 1830.
Swaminarayan died in 1830.

It is necessary at this stage to indicate broadly the
principles which Swaminarayan preached and which he wanted
his followers to adopt in life. These principles have been
suscinctly sum-

269

marised by Monier Williams. It is interesting to recall
that before Monier Williams wrote his Chapter on
Swaminarayan sect he visited the Wartal temple in company
with the Collector of Kaira on the day of the Purnima, or
full moon of the month of Karttik which is regarded as the
most popular festival of the whole year by the Swaminarayan
sect. On the occasion of this visit, Monier Williams had
long discussions with the followers of Swaminarayan and he
did his best to ascertain the way Swaminarayan’s principles
were preached and taught and the way they were, practised by
the followers of the sect. We will now briefly reproduce
some of the principles enunciated by Swaminarayan.
“The killing of any animal for the purpose of sacrifice to
the gods is forbidden by me. Abstaining from injury is the
highest of all duties. No flesh meat must ever be eaten, no
spirituous or vinous liquor must ever be drunk, not even as
medicine. My male followers should make the vertical mark
(emblematical of the footprint of Vishnu or Krishna) with
the round spot inside it (symbolical of Lakshmi) on their
foreheads. Their wives should only make the circular mark
with red powder or saffron. Those who are initiated into
the proper worship of Krishna should always wear on their
necks two rosaries made of `Tulsi wood, one for Krishna and
the other for Radha. After engaging in mental worship, let
them reverently bow down before the pictures of Radha and
Krishna, and repeat the eight-syllabled prayer to Krishna
(Sri Krishnan saranam mama, ‘Great Krishna is my soul’s
refuge’) as many times as possible. Then let them apply
themselves to secular affairs. Duty (Dharma) is that good
practice which is enjoined both by the Veda (Sruti) and by
the law (Smriti) founded on the Veda. Devotion (Bhakti) is
intense love for Krishna accompanied with a due sense of his
glory. Every day all my followers should go to the Temple
of God, and there repeat the names of Krishna. The story of
his life should be listened to with the great reverence, and
hymns in his praise should be sung on festive days. Vishnu,
Siva, Ganapati (or Ganesa), Parvati, and the Sun; these five
deities should be honoured with worship. Narayana and Siva
should be equally regarded as part of one and same Supreme
Spirit, since both have been declared in the Vedas to be
forms of Brahma. On no account let it be supposed that
difference in forms (or names) makes any difference in the
identity of the deity. That Being, known by various names

-such as the glorious Krishna, Param Brahma, Bhagavan, Puru-
shottama-the cause of all manifestations, is to be adored by
us as our one chosen deity. The philosophical doctrine
approved by me is the Visishtadvaita (of Ramanuja), and the
desired heavenly
270
abode is Goloka. there to worship Krishna and be united with
him as the Supreme Soul is to be considered salvation. The
twice born should perform at the proper seasons, and
according to their means, he twelve purification rites
(sankara), the (Six) daily duties, and the Sradha offerings
to the spirits of departed ancestors. A pilgrimage to the
Tirthas, or holy places, of which Dwarika (Krishna’s city in
Gujarat) is the chief, should be performed according to
rule. Almsgiving and kind acts towards the poor ,Should
always be performed by all. A tithe of one’s income should
be assigned to Krishna; the poor should give a twentieth
part. Those males and females of my followers who will act
according to these directions shall certainly obtain the
four great objects of all human desires-religious merit,
wealth, pleasure, and beatitude”(1).

The Gazetteer of the Bombay Presidency has summarised the
teachings embodied in the Shikshapatri in this way :-

“The book of precepts strictly prohibits the
destruction of animal life; promiscuous
intercourse with the other sex; use of animal
food and intoxicant liquors and drugs on any
occasion, suicide, theft and robbery; false
accusation against a fello-wman, blasphemy;

partaking of food with low caste people; caste
pollution; company of atheists and heretics
and other practices which might counteract the
effect of the founder’s teachings”.(2)
It is interesting to notice how a person is initiated into
the sect of Satsangis. The ceremony of initiation is thus
described in the Gazetteer of the Bombay Presidency :-

“The ceremony of initiation begins with the
novice offering a palmful of water which he
throws on the ground at the feet of the
Acharya saying : I give over to Swami
Sahajanand my mind, body, wealth, and sins of
(all) births, ‘Man’, tan, dhan, and janmana
pap. He is then given the sacred formula ‘Sri
Krishnastwam gatirmama, Shri Krishna thou art
my refuge. The novice then pays at least half
a rupee to the Acharya. Sometimes the Acharya
delegates his authority to admit followers as
candidates for regular discipleship, giving
them the Panch Vartaman, formula forbiding
lying, theft, adultery, intoxication and
animal food. But a
(1) “Religious thought and life in India”‘ By Monier
Williams pp. 155-58.

(2) Gazetteer of the Bombay Presidency, Vol. IX, Part 1,
Gujarat Population, 1901, p. 537.

2 7 1
.lm15
perfect disciple can be made only after receiving the final
formula from one of the two Acharyas. The distinguishing
mark, which the disciple is then allowed to make on his
forehead, is a vertical streak of Gopichandan clay or sandal
with a round redpowder mark in the middle and a necklet of
sweet basil beads”.(1)
Now that we have seen the main events in the life and career
of Swaminarayan and have examined the broad features of his
teachings, it becomes very easy to, decide the question as
to whether the Swammarayan sect constitutes a distinct and
separate religion and cannot be regarded as a part of Hindu
religion. In our opinion, the plea raised by the appellants
that the Satsangis who follow the Swaminarayan sect form a
separate and distinct community different from the Hindu
community and their religion is a distinct and separate
religion different from Hindu religion, is entirely
misconceived. Philosophically, Swaminarayan is a follower
of Ramanuja, and the essence of his teachings is that every
individual should follow the main Vedic injunctions of a
good, pious and religious life and should attempt to attain
salvation by the path of devotion to Lord Krishna. The
essence of the initiation lies in giving the person
initiated the secret ‘Mantra’ which is : “Lord Krishna, thou
art my refuge : Lord Krishna, I dedicate myself to thee’.
Acceptance of the Vedas with reverence recognition of the
fact that the path of Bhakti or devotion leads to Moksha,
and insistence on devotion to Lord Krishna unambiguously and
unequivocally proclaim that Swaminarayan was a Hindu saint
who was determined to remove the corrupt practices which had
crept into the lives of the preachers and followers of
Vallabhacharya, and who wanted to restore the Hindu religion
to its original glory and purity. Considering the work done
by Swaminarayan, history will not hesitate to accord him the
place of honour in the galaxy of Hindu saints and religious
reformers who by their teachings, have contributed to make
Hindu religion ever alive, youthful and vigorous.
It is, however, urged that there are certain features of the
Satsangi followers of Swaminarayan which indicate that the
sect is a different community by itself and its religion is
not a part of Hindu religion. It is argued that no person
becomes a Satsangi by birth and it is only by initiation
that the status of Satsangi is conferred on a person.
Persons of other religions and Harijans can join the
Satsangi sect by initiation. Swaminarayan himself is
(1) Gazetteer of the Bombay Presidency, Vol. IX Part 1,
Gujarat Population, pp. 538-39.

2 72 .

treated as a God and in the main temple, worship is offered
to Swaminarayan pre-eminently; and that, it is argued, is
not consistent with the accepted notions of Hindu religion.
Women can take Diksha and become followers of Swaminarayan
though Diksha to women is given by the wife of the Acharya.
Five vows have to be taken by the followers of the Satsang,
such as abstinence from drinking, from non-vegetarian diet,
from illegal sexual relationship, from theft and from inter-
pollution. Separate arrangements are made for Darshan for
women, special scriptures are honoured and special teachers
are appointed to worship in the temples. Mr. Desai contends
that having regard to all these distinctive features of the
Swaminarayan sect, it would be difficult to hold that they
are members of the Hindu community and their temples are
places of public worship within the meaning of s. 2 of the
Act.

We are not impressed by this argument. Even a cursory study
of the growth and development of Hindu religion through the
ages shows that whenever a saint or a religious reformer
attempted the task of reforming Hindu religion and fighting
irrational or corrupt practices which had crept into it, a
sect was born which was governed by its own tenets, but
which basically subscribed to the fundamental notions of
Hindu religion and Hindu philosophy. It has never been
suggested that these sects are outside the Hindu brotherhood
and the temples which they honour are not Hindu temples,
such as are contemplated by s. 3 of the Act. The fact that
Swaminarayan himself is worshipped in these temples is not
inconsistent with the belief which the teachings of Bhagvad-
Gita have traditionally created in all Hindu minds.
According to the Bhagvad-Gita, whenever religion is on the
decline and irreligion is in the ascendance, God is born to
restore the balance of religion and guide the destiny of the
human race towards salvation.(1) The birth of every saint
and religious reformer is taken as an illustration of the
principle thus enunciated by Bhagvad-Gita; and so, in course
of time, these saints themselves are honoured, because the
presence of divinity in their lives inevitably places them
on the high pedestal of divinity itself. Therefore, we are
satisfied that none of the reasons on which Mr. Desai
relies, justifies his contention that the view taken by the
High Court is not right.

It is true that the Swaminarayan sect gives Diksha to the
followers of other religions and as a result of such
initiation, they
Gita 4 .7.

273

become Satsangis without losing their character as the
followers of their own individual religions. This fact,
however, merely shows that the Satsang philosophy preached
by Swaminarayan allows followers of other religions to
receive the blessings of his teachings without insisting
upon their forsaking their own religions. The fact that
outsiders are willing to accept Diksha or initiation is
taken as an indication of their sincere desire to absorb and
practice the philosophy of Swaminarayan and that alone is
held to be enough to confer on them the benefit of
Swaminarayan’s teachings. The fact that the sect does not
insist upon the actual process of proselytising on such
occasions has really no relevance in deciding the question
as to whether the sect itself is a Hindu sect or not. In a
sense, this attitude of the Satsang sect is consistent with
the basic Hindu religious and philosophic theory that many
roads lead to God. Didn’t the Bhagavad-Gita say: “even
those who profess other religions and worship their gods in
the manner prescribed by their religion, ultimately worship
me and reach me.”(1) Therefore, we have no hesitation in
holding that the High Court was right in coming to the
conclusion that the Swaminarayan sect to which the
appellants belong is not a religion distinct and separate
from Hindu religion, and consequently, the temples belonging
to the said sect do fall within the ambit of s. 2 of the
Act.

The present suit began its career in 1948 and it was the
result of the appellants’ apprehension that the proclaimed
and publicised entry of the non-Satsangi Harijans would
constitute a violent trespass on the religious tenets and
beliefs of the Swaminarayan sect. The appellants must no
doubt, have realised that if non-Satsangi Hindus including
Harijans enter the temple quietly without making any public
announcement in advance, it would be difficult, if not
impossible, to bar their entry; but since respondent No. 1
publicly proclaimed that he and his followers would assert
their right of entering the temples, the appellants thought
occasion had arisen to bolt the doors of the temples against
them; and so, they came to the Court in the present
proceedings to ask for the Court’s command to prevent the
entry of respondent No. 1 and his followers.
It may be conceded that the genesis of the suit is the
genuine apprehension entertained by the appellants; but as
often happens in these matters, the said apprehension is
founded on superstition, ignorance and complete
misunderstanding of the true teachings
Gita 9.23.

27 4
of Hindu religion and of the real significance of the tenets
and philosophy taught by Swaminarayan himself.
While this litigation was slowly moving from Court to Court,
mighty events of a revolutionary character took place on the
national scene. The Constitution came into force on the
26th January, 1950 and since then, the whole social and
religious outlook of the Hindu community has undergone a
fundamental change as a result of the message of social
equality and justice proclaimed by the Indian Constitution.
We have seen how the solemn promise enshrined in Art. 17 has
been gradually, -but irresistibly, enforced by the process
of law assisted by enlightened public conscience. As a
consequence, the controversy raised before us in the present
appeal has today become a matter of mere academic interest.
We feel confident that the view which we are taking on the
merits of the dispute between the parties in the present
appeal not only accords with the true legal position in the
matter, but it will receive the spontaneous approval and
response even from the traditionally conservative elements
of the Satsang community .Whom the appellants represent in
the present litigation. In conclusion, we would like to
emphasise that the right to enter temples which has been
vouchsafed to the Harijans by the impugned Act in substance
symbolises the right of Harijans to enjoy all social
amenities and rights, for, let it always be remembered that
social justice is the main foundation of the democratic way
of life ,,enshrined in the provisions of the Indian
Constitution.

The result is, the appeal fails and is dismissed with costs.
Appeal dismissed.

275