# (2011) 2 ILRA 669

- **Citation:** (2011) 2 ILRA 669
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-09
- **Bench:** Devi Prasad Singh, S.C. Chaurasia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2011-2-ilra-669-41959
- **Pages:** 17

## Headnote

Constitution of India, Article 25, 26-oral
restriction-on procession of " Akhand
Jyoti Kalash" by local administrationheld-really unfortunate if state feels
helpless to facilitate religious procession
even
after
expiry
of
63
years
of
Independence-General Mandamus issued
to
the
Govt.
to
frame
regulation
providing the authority to entertain such
application and inform in writing within
3 days through registered post by the
decision taken.

Held: Para 42 and 43

It is unfortunate that the State feels
itself helpless to facilitate the religious
procession. Even after 63 years of
independence, governmental system has
been
failed
to
create
communal
harmony, love and affection among the
various sections of the society. Religious
procession or rituals of one community
must be welcomed by other and only
then,
countrymen
may
enjoy
the
independence
and
freedom
of
life.
Freedom and independence cannot be
enjoyed in an atmosphere where the
State
or
its
authorities
find
one
670 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
community in a "dominant' position to
check the others' religious practice.

It is well settled that the State or its
instrumentalities have to pass order in
writing while considering an application,
that too relating to fundamental right
protected
by
the
Constitution.
Oral
communication of a decision is antithesis to rule of law. The decision must
be
speaking
one
may
be
precise
indicating
therein
the
reason
for
rejection of an application moved by
citizen or a body.
Case law discussed:
AIR (37) 1950 SC 124; AIR (37) 1950 SC 129;
1970 SCC (Cr.) 67; 1970 (3) SCC 746; [1996
Lucknow Law Journel page 102 Anil versus
State of U.P. and others; (2004) 7 SCC 467;
(1983) 4 SCC 522; AIR 1966 SC 1119; AIR
1996 SC 1765; (1986) 3 SCC 20; (2000) 7 SCC
282; AIR 1970 SC 150; (2010) 3 SCC 732

## Text

_Characters 0–39,950 of 55,765. This is a partial read: ask again with offset=39950 for what follows._

2 All Vasudev Gupta V. State of U.P. and others
669
by the Tribunal in deciding Issue No.4 is
not correct.

34. In our opinion, as the application
of the Appellant-Insurance Company
under Section 170 of the Act was rejected
by the Tribunal, it is not open to the
Appellant-Insurance Company to raise the
question of involvement of the vehicle in
question in the accident or the question of
quantum of compensation awarded by the
Tribunal in the impugned Award. The
pleas raised in this regard by Shri S.K.
Mehrotra,
learned
counsel
for
the
Appellant-Insurance Company, cannot,
therefore, be considered.

35. In view of the above, we are of
the opinion that the Appeal filed by the
Appellant-Insurance
Company
lacks
merits, and the same is liable to be
dismissed.

The Appeal is accordingly dismissed.

36. However, on the facts and in the
circumstances of the case, there will be no
order as to costs.

37. The amount of Rs. 25,000/-
deposited by the Appellant-Insurance
Company while filing the present Appeal
will be remitted to the Tribunal for being
adjusted towards the amount payable
under the impugned Award.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.05.2011

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE S.C. CHAURASIA,J.

Misc. Bench No. - 3362 of 2011

Vasudev Gupta

 ...Petitioner
Versus
State of U.P., through Principal Secy.,
Home and others
 ...Respondents

Counsel for the Petitioner:
Sri Hari Shanker Jain
Sri Vishnu Shankar Jain

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 25, 26-oral
restriction-on procession of " Akhand
Jyoti Kalash" by local administrationheld-really unfortunate if state feels
helpless to facilitate religious procession
even
after
expiry
of
63
years
of
Independence-General Mandamus issued
to
the
Govt.
to
frame
regulation
providing the authority to entertain such
application and inform in writing within
3 days through registered post by the
decision taken.

Held: Para 42 and 43

It is unfortunate that the State feels
itself helpless to facilitate the religious
procession. Even after 63 years of
independence, governmental system has
been
failed
to
create
communal
harmony, love and affection among the
various sections of the society. Religious
procession or rituals of one community
must be welcomed by other and only
then,
countrymen
may
enjoy
the
independence
and
freedom
of
life.
Freedom and independence cannot be
enjoyed in an atmosphere where the
State
or
its
authorities
find
one
670 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
community in a "dominant' position to
check the others' religious practice.

It is well settled that the State or its
instrumentalities have to pass order in
writing while considering an application,
that too relating to fundamental right
protected
by
the
Constitution.
Oral
communication of a decision is antithesis to rule of law. The decision must
be
speaking
one
may
be
precise
indicating
therein
the
reason
for
rejection of an application moved by
citizen or a body.
Case law discussed:
AIR (37) 1950 SC 124; AIR (37) 1950 SC 129;
1970 SCC (Cr.) 67; 1970 (3) SCC 746; [1996
Lucknow Law Journel page 102 Anil versus
State of U.P. and others; (2004) 7 SCC 467;
(1983) 4 SCC 522; AIR 1966 SC 1119; AIR
1996 SC 1765; (1986) 3 SCC 20; (2000) 7 SCC
282; AIR 1970 SC 150; (2010) 3 SCC 732

(Delivered by Hon'ble Devi Prasad Singh, J.)

1. Present writ petition under Art.
226 of the Constitution of India has been
preferred by a devotee of Goddess Durga
asserting his right to carry on religious
procession for immersion of 'Akhand Jyoti
Kalash' in river 'Kalyani' of district
Barabanki of the State of U.P.

2. Question, involved is of public
importance as to whether the State or its
authorities may stop a religious procession
or
religious
ceremony
affecting
the
citizens' right, protected by Arts. 25 and 26
of the Constitution of India ?

3. In village Rampur Katra within the
premises of police station Safdarganj,
district Barabanki, there is a temple named
Man Durga Mandir where the deity, i.e.
Goddess Durga is being worshiped since
time immemorial. Nine day worship of
nine incarnations of Durga is done in
Navaratri, namely Shardiya and Vasantik.
After Navaratri, 'Akhand Jyoti Kalash'
procession is carried out by the villagers to
immerse the Jyoti Kalash in river Kalyani.
Earlier in the year 2003, when the Jyoti
Kalash procession was stopped by the
district administration, the petitioner had
filed a writ petition No.5149(M/B) of 2009
whereby a Division Bench of this Court
has passed an interim order dated
10.10.2003 permitting to carry out the
procession and directing the District
Magistrate, barabanki to make proper
arrangement for immersion of Jyoti Kalash
peacefully.

4. It appears that when the order was
not complied with in letter and spirit, an
Advocate Commissioner was appointed. In
pursuance to the order passed by this
Court, the Advocate Commissioner Shri
Anupam
Mehrotra,
a
distinguished
advocate of this Court had gone to make
spot inspection and submitted his report, a
copy of which has been filed as Annexure
No.3 to the writ petition.

5. Now again, according to the
petitioner's counsel, Jyoti Kalash ceremony
has been stopped by the administration and
the petitioner and his associates have been
restrained to immerse Jyoti Kalash in river
Kalyani. Hence, the present writ petition
has been preferred.

6. It has been submitted by Shri H.S.
Jain, learned counsel for the petitioner that
the petitioner and other villagers have got
right to immerse Akhand Jyoti Kalash in
river Kalyani and they have also right to
assemble for the purpose and move in
procession for immersion of 'Akhand Jyoti'
in accordance with Hindu rituals. It has
also been submitted that Puja during
Navaratri festival is continuing in "Ma
Durga Mandir" since ages which cannot be
2 All Vasudev Gupta V. State of U.P. and others
671
stopped by the district administration in
any manner whatsoever. It has also been
submitted
that
after
completion
of
'Navaratri', they have right to move in
procession to immerse Akhand Jyoti
Kalash. Their right has been protected by
Arts. 25 and 26 of the Constitution of
India.

7. On the other hand, learned Chief
Standing Counsel submits that the Akhand
Jyoti Kalash procession has been started
recently in the year 2003 for the first time.
It is incorrect to say that it is age old
tradition professed by Hindu villagers. It
has also been submitted that the State has
right to stop new tradition which lacks old
practice. It is further submitted that the
district administration has no objection so
far as the procession is concerned but that
should move on the specified route. It is
further submitted by the learned Chief
Standing Counsel that the temple is not
situated from time immemorial; rather it
was a very small temple, known as
'Mathya' in local parlance and for the first
time, it was constructed in the year 2003.
However, it has been submitted that
because
of
overwhelming
Muslim
population in the adjoining area and
because of their objections, the district
administration has tried to regulate the
procession from different route which has
been objected by the petitioner and his
associates. For convenience, para 8 of the
counter affidavit filed by Shri Gore Lal
Shukla, Sub Divisional Magistrate, Sirauli
Gaushpur, district Barabanki is reproduced
as under :

"8. That in reply to the contents of
paragraph 4 of the writ petition it is
submitted that during 'Vasantik Navratra'
neither ' Akhand Jyoti Kalash' has earlier
ever been installed in the temple nor it has
ever been immersed by the devotees in
river Kalyani. It is not denied that village
Rampur Katra is heavily populated by
Muslims.

It is stated that village Rampur Katra
has a history of communal flare-ups in past
which started in the year 1981 on the day
of Basant Panchami and the local police
has taken preventive measures. However,
in 'Tyohar Register' there is no entry about
observance the rituals related to ' Akhand
Jyoti Kalash' since 1982 to 2002. Akhand
Jyoti used to be installed in Purvi Devi
Temple which used to be immersed in
Kalyani river but while immersion took
place the same was not taken in a
procession in the village. In the year 2002
there was some dispute relating to open
land in front of Durga Temple and with the
efforts made by the District and Police
Administration
there
was
some
compromise arrived at between two
communities.

It is further stated that during
Shardiya Navratra in the year 2003, on
4.10.2003 for the first time 'Akhand Jyoti
Kalash was planned to be immersed in the
year and procession carrying the Kalash
was taken and while passing through the
Muslim dominated areas the same was
objected to by the members of the Muslim
community. Since then on such occasions
there has always been apprehension of
breech of peace and public order. At this
juncture, it is further stated that the
petitioner and other members of Hindu
Community deliberately intend to take out
the procession through a route passing
through the midst of the thick population
of Muslims. For Shardiya Navratra,
District
and
Police
Administration
suggested another route which processes
through the Public Works Department
672 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Road and goes to the bridge at Kalyani
River where the Kalash can be immersed.
However, devotees of the Kalash never
agreed to same. It is further stated that the
District Administration has also sorted out
another straight route from the temple to
Kalyani river which is shorter in distance
and does not pass through thick population
of the other community but on the said
route
also
the
members
of
Hindu
community do not agree. For the purposes
of sorting out a solution for taking out the
procession and immersing the Kalash in
river Kalyani a sketch map was prepared in
the year 2003 which is being annexed
herewith as Annexure no. CA-1 to this
Counter Affidavit."

8. It has been vehemently argued by
Mr.
D.K.
Upadhyay,
learned
Chief
Standing Counsel that the State is not
depriving to immerse the Akhand Jyoti
Kalash in river Kalyani but only specifying
the route to maintain law and order. It is
submitted that being Muslim dominated
area, a different route has been set up by
the district administration. Learned Chief
Standing Counsel further submits that it is
not an age old practice but a new one
started in 2003, hence also, the petitioner
has no fundamental right to claim
immersion of Akhand Jyoti Kalash in river
Kalyani.

9. However, the petitioner has
reiterated his submission and invited
attention to the application filed with
supplementary affidavit stating that they
have right to profess religion and carry
out the procession for immersion of
'Akhand Jyoti Kalash' in river Kalyani.
The petitioner's counsel also raised
objection with regard to the word,
'dominant' used by the respondents while
filing counter affidavit. It is stated that the
temple is age old and only renewal work
was done in the year 2003.

10. Articles 25 and 26 of the
Constitution of India protect the practice
and propagation of religion. Articles 25
and 26 of the Constitution are reproduced
as under :

"Article 25 {Freedom of conscience
and
free
profession,
practice
and
propagation of religion}

1. Subject to public order, morality
and health and to the other provisions of
this Part, all persons are equally entitled
to freedom of conscience and the right
freely to profess, practice and propagate
religion.

2. Nothing in this article shall affect
the operation of any existing law or
prevent the State from making any law -

a. regulating or restricting any
economic, financial, political or other
secular activity which may be associated
with religious practice;

b. providing for social welfare and
reform or the throwing open of Hindu
religious institutions of a public character
to all classes and sections of Hindus.

[Explanation I: The wearing and
carrying of kirpans shall be deemed to be
included in the profession of the Sikh
religion.]

[Explanation II: In sub-Clause (b) of
clause (2), the reference to Hindus shall
be construed as including a reference to
persons professing the Sikh, Jaina or
Buddhist religion, and the reference to
2 All Vasudev Gupta V. State of U.P. and others
673
Hindu religious institutions shall be
construed accordingly.]

Article 26 {Freedom to manage
religious affairs}

Subject to public order, morality and
health, every religious denomination or
any section thereof shall have the right -

a.
to
establish
and
maintain
institutions for religious and charitable
purposes;

b. to manage its own affairs in
matters of religion;

c. to own and acquire movable and
immovable property; and

d. to administer such property in
accordance with law."

11. A plain reading of Art. 25
reveals that freedom of conscience and
free profession, practice and propagation
of religion has been subjected to public
order, morality and health and other
provisions of Part-III of the Constitution.
Every person is entitled to freedom of
conscience and the right freely to profess,
practise and propagate religion. However,
these rights have been subjected to public
order, morality and health. Meaning
thereby, the citizens' right of practice and
propagation of religion is subjected to
public order and morality.

12. Article 26 guarantees freedom to
manage religious affairs that too subject
to public order, morality and health. Art.
26 further guarantees citizens' right to
manage its own affairs in the matter of
religion but that too subject to public
order and morality.
PUBLIC ORDER

13. "Public Order" is what the French
call "ordre publique" and is something
more than ordinary maintenance of law
and order. While the expression 'law and
order' is wider in scope inasmuch as
contravention of law always affects order.
'Public order' has a narrower ambit, and
public order could be affected by only such
contravention which affects the community
or the public at large. Public order is the
even tempo of life of the community
taking the country as a whole or even a
specified locality. The distinction between
the areas of 'law and order' and 'public
order' is one of the degree and extent of the
reach of the act in question on society. It is
the potentiality of the act to disturb the
even tempo of life of the community which
makes it prejudicial to the maintenance of
the public order. Acts similar in nature, but
committed in different contexts and
circumstances,
might
cause
different
reactions. In one case it might affect
specific individuals only, and therefore
touches the problem of law and order only,
while in another it might affect public
order. The act by itself, therefore, is not
determinant of its own gravity. In its
quality it may not differ from other similar
acts, but in its potentiality, that is, in its
impact on society, it may be very different.
It is the length, magnitude and intensity of
the terror wave unleashed by a particular
eruption
of
disorder
that
helps
to
distinguish it as an act affecting 'public
order' from that concerning 'law and order'.
The question to ask is: "Does it lead to
disturbance of the current life of the
community so as to amount to a
disturbance of the public order or does it
affect merely an individual leaving the
tranquility of the society undisturbed"?
This question has to be faced in every case
674 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
on its facts. The two concepts have well
defined contours, it being well established
that stray and unorganized crimes of theft
and assault are not matters of public order
since they do not tend to affect the even
flow of public life.

14. 'Public Order', 'law and order' and
the 'security of the State' fictionally draw
three
concentric
circles,
the
largest
representing law and order, the next
representing public order and the smallest
representing security of the State. Every
infraction of law must necessarily affect
order, but an act affecting law and order
may not necessarily also affect the public
order. Likewise, an act may affect public
order, but not necessarily the security of
the State. The true test is not the kind, but
the potentiality of the act in question. One
act may affect only individuals while the
other, though of a similar kind, may have
such an impact that it would disturb the
even tempo of the life of the community.
This does not mean that there can be no
overlapping, in the sense that an act cannot
fall under two concepts at the same time.
An act, for instance, affecting public order
may have an impact that it would affect
both public order and the security of the
State.

15. The disturbance of public order is
to distinguish from acts directed against
individuals which do not disturb the
society to the extent of causing a general
disturbance of public tranquility. It is the
degree of disturbance and its effect upon
the life of the community in a locality
which determines whether the disturbance
amounts only to a breach of law and order.
Public order was said to embrace more of
the community then law and order. Public
order was the even tempo of the life of the
community taking the community as a
whole or even a specified locality.

It is the potentiality of the act to
disturb the even tempo of life of the
community which makes it prejudicial to
the maintenance of public order.

It is not the number of acts that
matters - What has to be seen is the effect
of the act on the even tempo of life, the
extent of its react upon society and its
impact.

16. While interpreting the word,
'public order', Hon'ble Supreme Court in a
case reported in AIR (37)1950 SC 124
Ramesh Thappar versus The State of
Madras held that public order is an
expression of wide connotation and
signifies the state of tranquility prevailing
among the members of a political society
as a result of the internal regulations
enforced by the Government which they
have instituted. "Public safety" is used as a
part of the wider concept of public order.
Public safety ordinarily means security of
public or their freedom from danger.
Anything which tends to prevent dangers
to public health may also be regarded as
securing public safety.

17. In AIR (37) 1950 SC 129 Brij
Bhushan and another versus The State
of Delhi, Hon'ble Supreme Court held that
the public order and public safety are allied
matters, but in order to appreciate how
they stand in relation to each other, it
seems best to direct our attention to the
opposite concepts which we may, for
convenience of reference, respectively
label as 'public disorder' and 'public
unsafety'. 'Maintenance of public order'
always occurs in juxtaposition with 'public
safety'.
2 All Vasudev Gupta V. State of U.P. and others
675

18. In 1970 SCC (Cr.) 67 Arun
Ghosh versus State of West Bengal,
Hon'ble Supreme Court distinguished the
'public order' and 'law and order' holding
that the 'public order' is to be distinguished
from acts directed against individual which
do not disturb the society to the extent of
causing a general disturbance of public
tranquility.

19. In 1970(3) SCC 746 Madhu
Limaye
versus
Sub-Divisional
Magistrate, Monghyr and others, while
considering the expression, "in the interest
of public order', Hon'ble Supreme Court
ruled that it includes those acts which
disturb the security of the State or are
within "Order- Publique" along with
certain acts which disturb public tranquility
or are breaches of the peace.

20. In [1996 Lucknow Law Journel
page 102 Anil versus State of U.P. and
others, a Division Bench of Allahabad
High Court at Lucknow has distinguished
the concept of 'public order' and 'law and
order' as the latter is directed against
individuals which do not disturb the
society to the extent of causing a general
disturbance of public tranquility. The
Court held that it is a degree of disturbance
and its effect upon the life of a community
in
the
locality
determines
whether
disturbance amounts to only breach of law
and order or public order.

21.

In
(2004)7
SCC
467
Commissioner of Police and others
versus C. Anita (Smt), Hon'ble Supreme
Court while considering the validity of
detention held that the condition precedent
for detention is the act for which a person
is charged should be prejudicial to the
maintenance of public order. To reproduce
relevant portion :

"7.............The crucial issue is whether
the activities of the detenu were prejudicial
to public order. While the expression 'law
and order' is wider in scope inasmuch as
contravention of law always affects order.
'Public order' has a narrower ambit, and
public order could be affected by only such
contravention which affects the community
or the public at large. Public order is the
even tempo of life of the community
taking the country as a whole or even a
specified locality. The distinction between
the areas of 'law and order' and 'public
order' is one of the degree and extent of the
reach, of the act in question on society. It is
the potentiality of the act to disturb the
even tempo of life of the community which
makes it prejudicial to the maintenance of
the public order. If a contravention in its
effect is confined only to a few individuals
directly involved as distinct from a wide
spectrum of public, it could raise problem
of law and order only. It is the length,
magnitude and intensity of the terror wave
unleashed by a particular eruption of
disorder that helps to distinguish it as an
act affecting public order' from that
concerning 'law and order'. The question to
ask is: "Does it lead to disturbance of the
current life of the community so as to
amount to a disturbance of the public order
or does it affect merely an individual
leaving the tranquility of the society
undisturbed"? This question has to be
faced in every case on its facts.

8. "Public order" is what the French
call 'ordre publique' and is something more
than ordinary maintenance of law and
order. The test to be adopted in
determining whether an act affects law and
order or public order, is: Does it lead to
disturbance of the current life of the
community so as to amount to disturbance
of the public order or does it affect merely
676 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
an individual leaving the tranquility of the
society undisturbed?

9. "Public order" is synonymous with
public safety and tranquility: "it is the
absence of disorder involving breaches of
local significance in contradistinction to
national upheavals, such as revolution,
civil strife, war, affecting the security of
the State". Public order if disturbed, must
lead to public disorder. Every breach of the
peace does not lead to public disorder.
When two drunkards quarrel and fight
there is disorder but not public disorder.
They can be dealt with under the powers to
maintain law and order but cannot be
detained on the ground that they were
disturbing public order. Disorder is no
doubt prevented by the maintenance of law
and order also but disorder is a broad
spectrum, which includes at one end small
disturbances and at the other the most
serious and cataclysmic happenings.

10. 'Public Order', 'law and order' and
the 'security of the State' fictionally draw
three
concentric
circles,
the
largest
representing law and order, the next
representing public order and the smallest
representing security of the State. Every
infraction of law must necessarily affect
order, but an act affecting law and order
may not necessarily also affect the public
order. Likewise, an act may affect public
order, but not necessarily the security of
the State. The true test is not the kind, but
the potentiality of the act in question. One
act may affect only individuals while the
other, though of a similar kind, may have
such an impact that it would disturb the
even tempo of the life of the community.
This does not mean that there can be no
overlapping, in the sense that an act cannot
fall under two concepts at the same time.
An act, for instance, affecting public order
may have an impact that it would affect
both public order and the security of the
State.

11. The distinction between 'law and
order' and 'public order' has been pointed
out succinctly in Arun Ghosh's case
(supra). According to that decision the true
distinction between the areas of 'law and
order' and 'public order' is "one of degree
and extent of the reach of the act in
question upon society". The Court pointed
out that "the act by itself is not determinant
of its own gravity. In its quality it may not
differ but in its potentiality it may be very
different".

12. The true distinction between the
areas of law and order and public order lies
not merely in the nature or quality of the
act, but in the degree and extent of its
reach upon society. Acts similar in nature,
but committed in different contexts and
circumstances,
might
cause
different
reactions. In one case it might affect
specific individuals only, and therefore
touches the problem of law and order only,
while in another it might affect public
order. The act by itself, therefore, is not
determinant of its own gravity. In its
quality it may not differ from other similar
acts, but in its potentiality, that is, in its
impact on society, it may be very different.

13. The two concepts have well
defined contours, it being well established
that stray and unorganized crimes of theft
and assault are not matters of public order
since they do not tend to affect the even
flow of public life. Infractions of law are
bound in some measure to lead to disorder
but every infraction of law does not
necessarily result in public disorder. Law
and order represents the largest scale
within which is the next circle representing
2 All Vasudev Gupta V. State of U.P. and others
677
public order and the smallest circle
represents the security of State. "Law and
order" comprehends disorders of less
gravity than those affecting "public order"
just
as
"public
order"
comprehends
disorders of less gravity than those
affecting "security of State".

MORALITY

22. Moral codes are ordinarily
founded
on
emotional
instincts
and
intuitions that were selected for in the past
because
they
aided
survival
and
reproduction.

23. Marc Bekoff and Jessica Pierce
(2009) have argued that morality is a suite
of behavioral capacities likely shared by all
mammals living in complex social groups
(e.g., wolves, coyotes, elephants, dolphins,
rats, chimpanzees). They define morality
as "a suite of interrelated other-regarding
behaviors that cultivate and regulate
complex interactions within social groups."
This suite of behaviors includes empathy,
reciprocity, altruism, cooperation, and a
sense of fairness. In related work, it has
been
convincingly
demonstrated
that
chimpanzees show empathy for each other
in a wide variety of contexts.

24. Christopher Boehm (1982) has
hypothesized
that
the
incremental
development
of
moral
complexity
throughout hominid evolution was due to
the increasing need to avoid disputes and
injuries in moving to open savanna and
developing stone weapons.

25. In talking about human rights
today, we are referring primarily to the
following demands; protection of the
individual against arbitrary infringement
by other individuals or by the government;
the right to work and to adequate earnings
from work; freedom of discussion and
teaching; adequate participation of the
individual
in the
formation
of
his
government. These human rights are
nowadays
recognised
theoretically,
although, by abundant use of formalistic,
legal manoeuvres, they are being violated
to a much greater extent than even a
generation ago."

26. When we speak for morality or
moral values, we become conscious to
some unforeseen restriction likely to be
imposed in the form of moral policing.
Though, under the old Indian concept, the
difference between the morality and law
was minimum. However, later on, law and
morality moved apart. Morality should not
be confused with law. Though, it may be
based on some religious doctrine because
of aged-old recognitions but basically it
shall be dependant upon its soundness and
perceived soundness providing guidelines
with the elements of social recognition to
regulate the social order for humanity as a
whole. The followers of Positivist theory
like, Hart Bentham, Austin and Kelson
have deliberately kept justice and morality
out of the purview of legal system. They
opined that law must never be used as a
custom or enforcement of any moral
standards. Their formalistic attitude is
concerned with law, as it is and not law as
it ought to be. Virtually, what appears, the
influence of the positivist on European law
makers had segregated the morality from
law and in due course of time, it affected
the moral values of the society. People
understand that they have to follow law
and morality as optional.

27. There cannot be statutory
provisions, rules or regulations to regulate
every breath of life. There are gaps,
678 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
vacuums in the field of law as well as
human behaviour which can be regulated
only by enforcing moral values. The
difference between constitutional and
statutory provisions are part and partial of
morality. Every moralist has to follow the
law and where there is conflict between the
law and moral values and the law is silent,
morality should also be enforced to
maintain social order and to check the
beast embedded in the human being.

28. According to Mahatma Gandhi,
civilization does not mean only to achieve
something for bodily comfort. Instead of
bodily comfort civilization co-relate to
generate the sense of duty in the coming
generation. It co-relate with the good
conduct of a person and sense of duty
towards nations and society. In the words
of Mahatma Gandhi, to quote:-

"Civilization is that mode of conduct
which points out to man the path of duty.
Performance of duty and observance of
morality are convertible terms. To observe
morality is to attain mastery over our mind
and out passions. So doing, we know
ourselves. The Gujarati equivalent for
civilization means "good conduct 1 ".

29. In a democratic polity or country
like India, morality may be judged after
taking into account the commonality or
common features broadly accepted by
different religions, sex, communities or
believers and non-believers securing the
ultimate goal, i.e. the public good and
national interest.

CONSTITUTIONAL AMBIT AND
DISCUSSION

30. In view of above, Arts. 25 and 26
of
the
Constitution
do
not
extend
unfettered right to carry on religious
practice but it has been subjected to public
order and morality. However, under the
garb of public order or morality, the State
and its authorities have no right to interfere
with the right protected by Arts. 25 and 26
on flimsy grounds or for extraneous
reasons or by abuse of their power. In case,
it
is
done
arbitrarily,
then
being
fundamental right, the decision of State is
subject to judicial review and the court
may pass appropriate direction to protect
the rights of citizens.

31. Hon'ble Supreme Court in
(1983)4
SCC
522
Acharya
Jagdishwaranand Avadhuta and others
versus Commissioner of Police, Calcutta
and another negatived the plea of Ananda
Margis for Tandava dance in processions
or at public places. Hon'ble Supreme Court
held that Ananda Marga is not a separate
religion being not an institutionalized
religion but a religious denomination.
Relying upon its earlier judgment reported
in
AIR
1966
SC
1119
Sastri
Yagnapurushadji
versus
Muldas
Bhudardas Vaishya, to satisfy the word,
'religious denomination, three conditions
are required to be fulfilled, viz. (1) It must
be a collection of individuals who have a
system of beliefs or doctrines which they
regard as conducive to their spiritual wellbeing, that is, a common faith; (2) common
organisation; and (3) designation by a
distinctive name. To reproduce relevant
portion; to quote :

"17. Similar view was expressed by
this Court in Gulam Abbas and Ors. v.
State of U.P. and Ors. where it was said
that "the entire basis of action Under
Section 144 is provided by the urgency of
the situation and the power thereunder is
intended to be availed of for preventing
2 All Vasudev Gupta V. State of U.P. and others
679
disorders, obstructions and annoyances
with a view to secure the public weal by
maintaining
public
peace
and
tranquility...." Certain observations in
Gulam Abbas's decision regarding the
nature of the order Under Section 144 of
the Code - judicial or executive - to the
extent they run counter to the decision of
the Constitution Bench in Babulal Parat's
case, may require reconsideration but we
agree that the nature of the order Under
Section 144 of the Code is intended to
meet emergent situation. Thus the clear
and definite view of this Court is that an
order Under Section 144 of the Code is not
intended to be either permanent or semipermanent in character. The concensus of
judicial opinion in the High Courts of the
country is thus in accord with the view
expressed by this Court. It is not necessary
on that ground to quash the impugned
order of March 1982 as by efflux of time it
has already ceased to be effective."

32. In AIR 1996 SC 1765 A.S.
Narayana Deekshitulu versus State of
Andhra Pradesh and others, their
Lordships of Hon'ble Supreme Court
accepted the importance of rituals in
religious life which is relevant for
evocation
of
mystic
and
symbolic
beginnings of the journey but on them the
truth of a religious experience cannot
stand. The truth of a religious experience is
far more direct, perceptible and important
to human existence. It is the fullness of
religious experience which must be
assured by temples, where the images of
the Lord in resplendent glory is housed.
All must have an equal right to plead and
in a manner of such directness and
simplicity that every human being can
approach the doors of the Eternal with
equality and with equal access and thereby
exercise greater freedom in his own life.
The word 'Dharma' or 'Hindu Dharma'
denotes upholding, supporting, nourishing
that which upholds, nourishes or supports
the stability of the society, maintaining
social order and general well-being and
progress of man kind; whatever conduces
to the fulfilment of these objects is
Dharma,
it
is
Hindu
Dharma
and
ultimately 'Sarva Dharma Sambhava'. It
shall be appropriate to reproduce few
paragraphs
from
A.S.
Narayana's
case(supra); to quote :

"39. Swami Vivekananda in his
lecture
on
"Religion
and
Science"
incorporated in "The Complete Works"
(Vol. VI, Sixth Edition) had stated at page
81 thus :

Experience is the only source of
knowledge. In the world, religion is the
only science where there is no surety,
because it is not taught as a science of
experience. This should not be. There is
always, however, a small group of men
who teach religion from experience. They
are called mystics, and these mystics in
every religion speak the same tongue and
teach the same truth. This is the real
science of religion. As mathematics in
every part of the world does not differ, so
the mystics do not differ. They are all
similarly constituted and similarly situated.
Their experience is the same; and this
becomes law.

In Volume II, Ninth Edn. at page 432,
Swamiji said that : "There are two worlds :
the microcosm and the macrocosm, the
internal and the external. We get truth from
both these by means of experience. The
truth gathered from internal experience is
psychology, metaphysics and religion;
from external experience, the physical
sciences. Now a perfect truth should be in
680 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
harmony with experience in both these
worlds.
The
microcosm
must
bear
testimony to the macrocosm and the
macrocosm to the microcosm; physical
truth must have its counterpart in the
internal world, and internal world must
have its verification outside;

"80. The importance of rituals in
religious life is relevant for evocation of
mystic and symbolic beginnings of the
journey but on them the truth of a religious
experience cannot stand. The truth of a
religious experience is far more direct,
perceptible and important to human
existence. It is the fullness of religious
experience which must be assured by
temples, where the images of the Lord in
resplendent glory is housed. To them all
must have an equal right to plead and in a
manner of such directness and simplicity
that every human being can approach the
doors of the Eternal with equality and with
equal access and thereby exercise greater
freedom in his own life. It is essential that
the value of law must be tested by its
certainty in reiterating the Core of
Religious Experience and if a law seeks to
separate
the
non-essential
from
the
essential so that the essential can have a
greater focus of attention in those who
believe in such an experience, the object of
such a law cannot be described as unlawful
but possibly somewhat visionary.

81. The word 'Dharma' or 'Hindu
Dharma' denotes upholding, supporting,
nourishing that which upholds, nourishes
or supports the stability of the society,
maintaining social order and general wellbeing and progress of man kind; whatever
conduces to the fulfilment of these objects
is Dharma, it is Hindu Dharma and
ultimately 'Sarva Dharma Sambhava'.

82. In contradistinction, Dharma is
that which approves oneself or good
consciousness
or
springs
from
due
deliberation for one's own happiness and
also for welfare of all beings free from
fear, desire, disease, cherishing good
feelings and sense of brotherhood, unity
and friendship for integration of Bharat.
This is the core religion which the
Constitution accords protection.

89. A religion undoubtedly has its
basis in a system of beliefs and doctrine
which are regarded by those who profess
religion to be conducive to their spiritual
well-being. A religion is not merely an
opinion, doctrine or belief. It has outward
expression in acts as well. It is not every
aspect
of
religion
that
has
been
safeguarded by Articles 25 and 26 nor has
the Constitution provided that every
religious activity cannot be interfered with.
Religion, therefore, cannot be construed in
the context of Articles 25 and 26 in its
strict and etymological sense. Every
religion must believe in a conscience and
ethical and moral precepts. Therefore,
whatever binds a man to his own
conscience and whatever moral or ethical
principle regulate the lives of men
believing in that theistic, conscience or,
religious belief that alone can constitute
religion as understood in the Constitution
which fosters feeling of brotherhood,
amenity, fraternity and equality of all
persons which find their foot-hold in
secular aspect of the Constitution. Secular
activities and aspects do not constitute
religion which brings under its own cloak
every human activity, There is nothing
which a man can do, whether in the way of
wearing clothes or food or drink, which is
not considered a religious activity. Every
mundane or human activity was not
intended
to
be
protected
by
the
2 All Vasudev Gupta V. State of U.P. and others
681
Constitution under the guise of religion.
The approach to construe the protection of
religion or matters of religion or religious
practices guaranteed by Articles 25 and 26
must be viewed with pragmatism since by
the very nature of things, it would be
extremely difficult, if not impossible, to
define the expression religion or matters of
religion or religious belief or practice."

33. In A.S.