TMI Blog1966 (1) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... s instituted, the Bombay Harijan Temple Entry Act, 1947 (No. 35 of 1947) (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 pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntertain 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utions. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arded 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thstanding 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst 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 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 enjo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 adequate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 philo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... munity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Swaminaray ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Krish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prehension 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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