1. The subject of my talk has become important because we are living in strange times. In Russia, where for decades religion was treated as the "opium of the people", recently, with the government's approval, the 1000th anniversary of the introduction of Christianity into Russia has been celebrated for a week. And a Coptic Church which had been converted into a museum has been restored to the Church.
2. A few days ago, His Holiness the Pope ex-communicated Archbishop Lefbvre and the four Bishops consecrated by him, - not for advocating reform but for adhering to the orthodoxy which the Vatican Council had given up!
3. Let me get a few things out of the way. It may be asked: Why elevate religious freedom into a fundamental right? Why not leave it to ordinary law? In my view our Constitution has wisely raised the freedom of conscience and religion to the level of fundamental rights. For, after Hitler's rule and Hitler's war, it was found necessary to do so. The Universal Declaration of Human Rights and the European Convention of Human Rights and Freedoms have treated freedom of religion as a basic human freedom.
4. Again, in free democracies it is a matter of free choice for an adult person whether to belong to a religion or not. He may not believe in any religion, or he may change his religion. But the membership of a religion inevitably limits the freedoms he would have enjoyed if he had not belonged to any religion.
5. Finally, the freedom of religion guaranteed by our Constitution is p[art of a scheme which embodies valuable human rights, broadly called civil liberties, conferred by Articles 14, 17, 19 to 22, 23, 25 to 28 (religious freedom), 29-30, free and fair elections and an independent Supreme Court and High Court judiciary. So, when we speak of freedom of religion and social reform, we are not talking merely of law and legality, but we are talking of morality and civil liberties as well, because they are at the heart of our Constitution.
6. We are now ready to consider religious freedom and social reform under our Constitution. You will recall how the enemies of Jesus Christ asked him: Shall we pay tribute to Caesar? Jesus asked them to produce a penny. When it was produced, it bore the image of Caesar, whereupon Jesus said: "Render to Caesar the things that are Caesar's, and to God the things that are God's": (Mark Chap. XII. V. 17). Broadly speaking, our Constitution renders to religion the things that belong to religion and to the State the things that belong to the State. The borderline is not east to draw; but it is to be drawn, without fear or favour, by independent judges.
7. Now let us stand back and look at the freedom of religion in India before the Constitution. The policy of the British Government was not to interfere with religion except in the most exceptional circumstances. Thus between 1833-1835, Lord William Bentick, as Governor General, abolished sati and abolished "thuggy" that is, the profession of armed robbers who under the purported sanction of religion robbed wayfarers and strangled them to death. Again, in 1860, Section 370 of the Penal Code, made the buying keeping and disposing of a slave a criminal offence.
8. Turning from State action to judicial decisions, our High Court ha splayed a great part in keeping the freedom of religion within its legitimate bounds. Other High Courts have done likewise, and the Privy Council has done as unhesitatingly. Let me refer briefly to three judicial decisions.
9. The first was in the famous Maharaj Liberl Case filed in 1861 by the Mahraj, the head of the Vallabhacharya Sect. The alleged libel was contained in articles written by Karsondas Mullji and published by Rutomji Ranina. Put briefly, the articles charged the Maharaj with defiling his female followers by his licentious practices. The Maharaj denied the charge. But he went further and claimed that he was practically a God, infallible and immaculate and as such not accountable for what his body did. After a witness action lasting 23 days before the Chief Justice, Sir Mathew Sausse, and Siur Joseph Arnould, it was found that the Maharaj was suffering from venereal disease; that he had admittedly infected two of his female followers and that his evidence on oath was unworthy of belief. The Chief Justice held that a part of the articles was technically a libel and awarded the Maharaj contemptuous damages and no costs. Karsondas and Ranina were awarded costs.
Sir Joseph Arnould, while agreeing with these orders, held that there was no libel. As a Vallabhacharian and as a journalist, Karsondas was discharging a moral and social duty, when he maintained that what was morally wrong could not be theologically right; that when religious practices sapped the very foundations of morality they ought to be denounced and exposed. He had rightly denounced and exposed them at great personal risk. The Maharaj left the Court in dishonour and disgrace.
10. Twenty-five years later, in 1886, an important case in Madras relating to a Muth: (1886) I. L. R. 10 Mad, 375, at P.475. There, during ordination ceremonies the disciple made a gift of his soul, body and wealth to his guru. A disciple refused to give his property to the guru notwithstanding the initiation ceremony. The Guru filed a suit. The Court held that the ceremony created no rights of property in the guru and the pupil was free to retain his property or to create a trust, secular or religious. Secondly, the pupil's gift of his soul, body and wealth to the guru, and his agreeing to be a slave of the guru was void under an Act of 1843.
11. We now take a leap of 35 years, and come to the decision of Justice Marten, later Chief Justice, in Advocate-General of Bombay v. Yusufalli 24 Bom. L. R., 1060, (popularly known as the Chandabhai Gulla's case). The admirable judgment of Mr. Justice Marten deals with many questions; but I'll deal only with a few of them. Put simply, the Advocate-General contended that the Mullaji Saheb, the religious head of Dawoodi Bohras, held certain properties in trust for the Dawoodi Bohra community, and prayed for a declaration to that effect and for consequential relief's. The answer of the Mullaji Saheb was that he was a god or practically a God; that he had the powers enjoyed by the Prophet Mahomed. Further, he was infallible and immaculate and even if he was a trustee, he was not accountable to any court. Mr. Justice Marten held that the Mullaji was neither a God nor practically a God; that he did not enjoy the powers of the Prophet; that even if infallible and immaculate he was a subject to the civil and criminal laws of India. Applying the Muslim Law of Trusts, it was held that the Mullaji Saheb was a trustee of the named properties and accountable as a trustee.
12. As to the mishaq whereby a follower of the Mullaji dedicated his tan (body), man (mind), and dhan (wealth) to the Mullaji, Mr. Justice Marten held, first, that in 1921 the formula of mishaq was 90 years old and obsolete; that in the witness box the Mullaji Saheb had disclaimed certain powers which the formula conferred on him. Further, the formula entitled the Mullaji to keep slaves which under s. 370 I. P. C. was a criminal offence. Secondly, as to the Mullaji's claim to his followers' property, there was no evidence to support the claim, that it had never been taken seriously; that the Madras case was on all fours and the mishaq would be a slavery bond and void, for as held in the Madras case nobody could agree to be the slave of a religious head. This decision rejecting the Mullaji's claim to his followers property was accepted by the Mullaji before the privy Council: (75 I.A. p.1.at p. 7)
13. These cases raised no question of excommunication. That question arose in 1947 in Hasanali v. Mansoorali (75 I.A. 1.) The appellants contended before the Privy Council that their excommunication by the respondent Mullaji Saheb was illegal and void. The Privy Council held that the Mullaji and the power to excommunicate, but it was not an absolute, untrammeled, and arbitrary power, but had to be exercised fairly and reasonably. Further, the power could be validly exercised only by conforming to the formal requirements for its exercised specified by the Privy Council. A court could then decide whether the formalities had been complied with, and whether here was any evidence to justify excommunication. As the formalities had been complied with in excommunicating the appellants, the Privy Council declared the excommunication void and granted an appropriate injunction, without prejudice to the Mullaji Saheb's power to make and enforce rules for the proper management of the Dargah properties provided that the rules were fair, reasonable, and not aimed at oppressing either of the appellants.
14. Speaking in 1921, Mr. Justice Marten said: "The British Government brings to its subjects, as a general rule, liberty of the person, liberty of conscience, liberty of speech and last, but perhaps not least, equality of man in the sight of the law.. (However), liberty must not degenerate into license. Hence the law has to impose restraints on those who misuse the privilege of a free citizen. The slanderer..is restrained by the law of libel, the thief by the Indian Penal Code": (24 Bom. L.R. at pp. 1090-91). Alter the first sentence to read "The Constitution of India brings to its citizens" and you will find Justice Marten's view repeated in countless judgements of our Supreme Court and our High Courts.
15. I will now turn to the provisions of our Constitution relating to the freedom of religion and social reform.
16. Article 25 (1) which confers religious freedom on every person, runs:
"Article 25. (1) Subject to the public order, morality and health, and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion".
It is obvious that Article 25 (1) confers an individual right, and the freedom conferred by it is not absolute. In the first place, it is subject to public order, morality and health, so that if the 4 cases I have discussed earlier were to arise today, they would be decided in the same way but on the stronger ground of violation of fundamental rights. Secondly, this freedom is subject to other provisions of part II. This would obviously include Article 25 (2) and would include Article 17 which abolished untouchability, for Article 17 is directly connected with Article 25 (2) (b) which, among other things, provides, in substance, for the throwing open to 'untouchables' of Hindu religious institutions of a public character. It has been rightly held by Justice Venkatarama Aiyyar for a very strong Constitution Bench that Article 25 (2) which provides for social and economic reform is, on a plain reading, not limited to individual rights. So, by an express provision, the freedom of religion does not exclude social and economic reform, although the scope of social reform would require to be defined.
17. Article 26 which confers on denominations the freedom to manage religious
affairs runs thus:
This freedom is also subject to public order, morality and health, so that the proposition endorsed by Sir Joseph Arnould in the Maharaj Libel Case that what is morally wrong cannot be theologically right is expressly embodied in Article 26. It would be strange of the Governor - General, representing the British Government, could abolish sati. Abolish "thuggy" and abolish slavery, and yet the Constitution of a free India permitted these grave evils. However, I will come to the social reform aspect later in this talk.
18. Our Supreme Court has rightly said that "Religion is hard to define", but the Court added that the following observations of Chief Justice of the High Court of Australia, Sir John Latham, in the Jehovah's Witnesses case were fully applicable to the protection of religion under our Constitution. The Chief Justice said:
"It is sometimes suggested that though the civil government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It (is).. difficult to maintain this distinction as relevant to the interpretation of Section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious, belief as part of religion": (1954) S.C.R. 1005 at p. 1024.
These observations are important for another reason not generally known. Sir John Letham had been a President of the Rationalist Society of Australia, and as a private individual, the temptation must have been strong to brush aside religious practices and rituals as irrational and, therefore, superstitious. But as a Judge he resisted that temptation, thus affirming the true judicial approach to the freedom of religion granted by the Australian Constitution-an approach equally demanded by the freedom of religion under our Constitution.
19. Following the observations of Chief Justice Latham, in a number of cases the Supreme Court has held that religion was not merely a matter of faith and belief, but also included rituals, ceremonies and religious practices according to the religious tenets of a religion. Secondly, what constituted an essential part of a religion was primarily to be determined with reference to the doctrine of that religion. Thirdly, the fact that religious rites and ceremonies required the expenditure of money, and the use of marketable commodities, would not convert religious rites and ceremonies into an economic or secular activity. Again, the language of Article 26 (b) showed a clear distinction between matters which were matters of religion and matters which were not: For example, the administration of property of the denomination according to law [Article 26 (d)]. Further, the freedom of a denomination to manage religious affairs did not include the right to manage religious affairs did not include the right to mismanage them, as for example, by excessive expenditure on rituals and ceremonies which would result in the destruction of the religious foundation itself. Consequently, Religious and Charitable Endowments Acts which, among other things, prevent mismanagement of religious institutions, were to that extent valid.
20. At this stage we are squarely confronted with two questions: First, "What are the rights and disabilities of persons who join a religious denomination? Secondly, what are the powers and privileges of the head of a religion and to what limitations are they subject?" The two questions, although distinct and separate, are inter-related, and an answer to those questions will enable us to determine the scope of individual and denominational religious freedom under our Constitution.
I do not propose to enter into a theological discussion. But to avoid emotional overtones, let me refer to two religious denominations in the Christian Church - the Trinitarian and the Unitarian Trinitarians hold that God, is one in "essence" but there in "person" - Father, Son and Holy Spirit. In opposition to this, Unitarians hold the central doctrine of the Single personality of God. The accepted definition of a "denomination" is" A collection of individuals classed together under the same name: a religious sect or body having a common faith and organization and designated by a common name". Thus a denomination is a cohesive body cemented by the essentials of its common creed. But what happens if a Trinitarian publicly denounces the doctrine of Trinity? Common sense would answer that he could no longer remain a member of the Trinitarian denomination, unless the publicly withdraws his denunciation and makes amends. And, as I will presently show, the freedom of religion conferred by our Constitution compels us to give the same answer.
21. We are thus brought face to face with the power claimed and exercised, by the heads of several religious denominations, to excommunicate a follower for apostasy, heresy or schism, of which the excommunication of Archbishop Lefbvre and the four Bishops by His Holiness the Pope a few weeks ago is a recent example. However, the consequence of excommunication are so grave that the nature of excommunication, the conditions of its exercise, and the areas of the follower's life which it can and cannot affect require careful examination. At first blush, religion conveys the idea of spiritual benefits to its followers. But, it is common knowledge that religious denominations hold properties and or funds as trustees for the benefit of their members. Thus, a denomination may hold funds for the relief of poverty, for promoting secular education, for medical relief, for subsidised housing, and so on. It is these material benefits which crate the problems arising from excommunication.
22. These problems have to be considered with reference to the heads of religion who are now no longer Rulers of territories, although their predecessors may have been Rulers in the past so, the use of temporal power in aid of the spiritual power of religious heads is put out of the way. Again, the member of a religious denomination may have personal property. The claim of the head of a Math in Madras, and of the Mullaji Saheb as the head of the Dawoodi Bohra community in Bombay, to the personal property of their followers was rejected by the Madras and the Bombay High Courts. And the Mullaji Saheb accepted this decision before the Privy Council. So the personal property of a member of a religious denomination belongs to him, whether he remains a member or is excommunicated.
23. But in addition to personal property, a s long as a person remains a member of a religious denomination, he has a beneficial interest in the properties and endowments held by the religious head in trust for the members of that denomination, such as temples, churches, mosques, burial grounds and endowments of relief of poverty, for medical relief, for education and the like.
24. But the member of a religious denomination who has been validly excommunicate, or who has abandoned religion altogether, cannot claim a beneficial interest in property held by the head of a religious denomination in trust for its members because the benefit of property held in trust for Class A cannot without a breach of trust, beused or allowed to be used for other classes. The proposition is too obvious to need any authority, but if any were needed, it will be found in the decision of the House of Lords In Free Church of Scotland (General Assembly of) v. Overtoun (Lord) (1904) A. C. 515 and in the judgement of Mr. Justice Ayyangar in Saifuddin Saheb v. State of Bombay A.I.R. 1962 S. C. 853 at p. 873.
25. But although this result appears obvious and simple, the social consequences of excommunication for apostasy are far reaching. And some of those consequences appear so hurtful to our feelings that question has been mooted whether excommunication should not be abolished for every religion by an amendment of the Constitution overriding to that extend Articles 25 and 26, just as untouchability has been abolished. But before considering the effect of excommunication let us consider the effect of apostasy by conversion to another religion on marriage between Hindus, and the effect of apostasy on marriage between Muslims. This inquiry will show that the painful consequences of apostasy are the result of the voluntary action of one of the parties to the marriage.
26. Taking the case of Hindus, under the Hindu Marriage Act, 1956, any marriage solemnized either before or after or after the Act, can on a petition for divorce presented by either the husband or the wife, be dissolved on the ground that the other party had ceased to be a Hindu by conversion to another religion. In other words, no right is given to obtain a divorce by conversion. But a right is given to the husband or the wife who remains a Hindu to put an end to the marriage by obtaining a divorce. In other words, apostasy by conversion can put an end to the marriage itself.
27. In Mahomedan Law before the Dissolution of Muslim Marriage Act, 1939, apostasy from Islam apostasy from Islam of either party to a marriage operated as a complete and immediate dissolution of the marriage: (Mulla's Mahomedan Law, 18th ed. p.33). However, under Section 4 of the Act the apostasy of the husband immediately dissolved the marriage and the relation of husband and wife was immediately brought to an end. But the apostasy of a wife did not bring the marriage to an end. But if her husband obstructed her in the observance of her religious profession or practice after her apostasy, then she could petition for, and obtain, a divorce : (Mulla, pp. 387.8)
28. It will be seen that apostasy produces far reaching results in the relations of husband and wife, when they do not stand by each other but decide to follow different religions. No doubt it appears, and is shocking, that a husband should not be allowed to be present at the burial of his wife. But by his own action in preferring a different religion from that of his wife's, he has ceased to be her husband. If the husband died cannot be buried in a grave yard held in trust by the head of a religious denomination for the benefit of his members. These shocking results follow from a self-inflicted and fatal wound. So, even if excommunication were abolished these painful results would be produced by the personal laws governing Hindus and Muslims.
29. We must now consider whether the power to excommunicate should be abolished? In answering this question we must remember that although Article 25 (1) confers freedom of conscience and religion on every person, and Article 26 confers the freedom to manage its own affairs on every religious denomination, in practice the two freedoms are closely connected. No doubt the follower of a religion can pray at home and "hit heaven with his prayers". But most followers of a religion desire to join in common worship and prayer in churches, temples, mosques and other places of religious worship. For, a religious denomination is, as we have seen, a cohesive body. And that cohesion would disappear if churches, temples, mosques and the like were empty. Again, the whole hierarchy of priesthood would, for practical purposes, disappear. I have made these observations because the power to excommunicate has been claimed in order to preserve the integrity of a religious denomination.
30. In proposing the abolition of excommunication, inspiration has been drawn form the abolition of "untouchability" by Article 17, and the throwing open of Hindu religious institutions of a public character to "untouchables". As will presently appear, this analogy is incorrect. First, a religious doctrine which treated one section of Hindus as sub-human, whose touch and even whose shadow polluted other sections of Hindus, had long been looked upon as a blot on the Hindu religion and Hindu society. Long before our Constitution came into force, it was a part of the programme of those who fought for and won our freedom to abolish untouchability and to throw open Hindu religious institutions of a public character to untouchables, and a number of Acts throwing open temples to untouchables had been passed. But what is most important to note is that the abolition of "untouchability" and the throwing open of temples to untouchables left the other essential tenets, rituals, ceremonies and the like intact. In fact by bringing untouchables within Hindu religious denominations the cohesion of those denominations was expected to be enhanced.
31. The question whether excommunication should be abolished came before our High Court with reference to the Bombay Prevention of Excommunication Act. 1949 ("the Act"). Its validity was challenged by the Mullaji Saheb in Sardar Sayedha Taher Saifuddin v.Koicha: 25 Bom. L. R. p. 1 Justice J. C. Shah held the Act valid but he made a most important reservation. He held that the definition of "excommunication" in the Act did not take away the right to exclude non-believers or renegades from places of religious worship of the community of which the cohesive force is belief in the same religion or religious faith. In appeal Chief Justice Chagla held Act valid. He did not go into the effect of apostasy on the untenable ground that it had been stated by the Mullaji Saheb that the case before the Court was not one of apostasy! This judgement was overruled by the Supreme Court by a majority of 4:1 in Sardar Syedna Saifuddin Saheb v. Bombay A.I.R. 1962 S.C. 853, by Justice Das Gupta for himself and Justices Sarkar and Madhokar and by Justice Ayyangar delivering a concurring judgment.
32. In his concurring judgment Justice Ayyangar referred to Dill v. Watson (1836) 2 Jones Rep. (Ir. Ex.) 48, 81 which contained observations a part of which was quoted by Lord Halsbury, L.C. Free Church of Scotland v. Overtoun (1904) A. C. 515, 616. From the quotation, Ayyangar J. extracted the following passage:
"In the absence of conformity to essentials, the denomination would not be an entity cemented into solidity by harmonious uniformity of opinion, it would be a mere incongruous heap of, as it were, grains of sand, thrown together without being united, each of these intellectual and isolated gains different form every other, and the whole forming a but nominally united while really unconnected mass; fraught with nothing but internal dissimilitude, and mutual and reciprocal contradiction and dissension".
33. Justice Das Gupta (for himself, Justice Sarkar and Justice Madholkar) went into greater detail. He referred, first to the Encyclopedia of Social Sciences in which Prof. Haseltine who said "Excommunication" has always and in all civilizations been one of principal means of maintaining the discipline within religious organizations and hence of preserving and strengthening their solidarity": A. I. R. 1962 S. C. at p. 868, Again, Das Gupta J. referred to the catholic Encyclopedia, Vol. V "England and Excommunication" to show that the Druids claimed the power to excommunicate: the early Christians exercised the power very largely, that His Holiness the Pope used this power frequently to secure proper religious rites and practices excommunicating even the Kings of some European Countries: A.I.R. 1962 S.C. p. 868. Das Gupta J. referred to Canon Law by Bouscaren and Ellis to show that under Cannon 1325, Section 2, excommunication can be pronounced for apostasy or schism. It follows from these judgements which in my opinion are correct, that to seek to abolish the power of heads of different religious denominations is to strike at the heart of the freedom conferred on religious denominations to manage their own affairs in matters of religion, for the absence of the power to excommunicate for apostasy, schism and hereby would lead to the disintegration of religious denominations.
34. Most of those who are opposed to excommunication concede, and rightly concede that apostasy at any rake makes excommunication inevitable. They realize that it would be absurd that a Muslim embracing Christianity should not be put out of the Muslim fold. And the only well established mode of doing so is by excommunication. But it is seriously urged that excommunication should be limited to apostasy. Schism and hereby and not to any other act of the member of a religious denomination. It is not possible in a talk like this to discuss this question. Many of you will recall Justice Das Gupta's observations:
"It is unnecessary for the purpose of this present case to enter into the difficult question whether every case of excommunication by the Dai on whatever ground inflicted is a matter of religion":
As a judge he was right in not deciding a question which did not arise for decision. However, not being a judge, I am quite clear that the power to excommunicate does not extend to certain acts of the member of a religious denomination. Thus a member cannot be excommunicated for disobeying the order of the religious head of his denomination to vote for a particular political party or a particular candidate for voting is a purely political activity. Secondly a follower cannot be excommunicated for denouncing the licentious conduct of the head of a religious denomination vis-à-vis his followers, for religious freedom is subject to "morality". Again, how a person should dress is not a matter of religion except for persons in religious orders, and an excommunication for disregarding a prescribed dress would be void. It is not necessary to multiply instances. The principle is clear. An attempt on the part of the religious head of a denomination to control the bodies, minds, and wealth of his followers is illegal and void.
35. Another important question requires consideration at this place. When religious heads of a denomination were also Rulers of territories, they had a power to impose taxes, the payment of which was a matter of religious merit. The heads of religious denominations who no longer wield temporal power cannot impose a tax at all for that power belongs to the State. The nature of "taxes" the payment of which had religious merit would have to be carefully scrutinized under the changed circumstances. The object of the "tax", the purpose it is designed to serve, the quantum of the tax and other factors would require careful judicial scrutiny and determination. But one thing is certain: no Court would, or should permit the head of a religious denomination to make extortionate and oppressive exactions under the guise of "tax" on pain of excommunication. It is clear therefore that there are larger areas of a religious man's life which the head of a religious denomination cannot legally or validly control.
36. But is reservation for social reform and economic activities connected with religion a mere matter of form? Not so. Turning to social reform, which is referred to in Article 25 (2). Legislation relating to Hindus enacted in 1956 brought about extensive social reform. The Hindu religion did not prescribe or oblige a person to have an indefinite number of wives, although as a matter of practice, polygamy was wide spread. Polygamy was abolished and a polygamous marriage contracted after the Act came into force became void and the person guilty of the offence punished. However, social considerations required that the children of such marriage should not be treated as illegitimate and the law so provided. Again, among Hindus marriage is not a contract, but a sacrament, and divorce was not recognized. However, realising the consequence of an indissoluble marriage in a number of cases, the recent legislation provided for divorce on stated grounds. It will therefore be seen that there is wide scope for social reforms and in fact power to bring about that reform has been exercised by the Legislature.
37. However, the principle agency for reform is education and time, and a lead given by leaders who command respect. Till 1865, polygamy prevailed among Parsis. The Trustees of the Parsi Panchayat, who were respected by the Parsis, applied to government to abolish polygamy and in 1865 Government passed the necessary law. The Hindu community - the largest majority in India took longer to educate to support or acquiesce in the abolition of polygamy, and that was done in 1956. No doubt political considerations may retard reform, but education and public opinion, must prevail. However, the limit of reform is that is cannot reform a religion out of existence or destroy its basic tenets.
38. Turning to economic activities associated with religion, let me take the example of a religious denomination which starts a bank. The most famous example is that of the Bank of Ambroiano in which the Pope and the Vatican were heavily involved. Due to extensive frauds the bank collapsed, with heavy liabilities to meet. It is obvious that running a bank is a business and when started by a religious denomination it may attract customers from the followers of that denomination. But it is a far cry for the religious head to direct that every follower must invest in the bank started by the religious denomination.
For, the right to acquire and own property and to invest in property and carry on business in the most profitable way is an economic activity and a civil right and any attempt to direct the followers as to what investments to make, what bank to deal with, what financial papers to read, would be clearly a matter of economic activity, not in any way affected by religious tenets. No doubt in certain religions, like the Mahomedan religion, investment of money at interest is frowned upon. But in modern conditions that dislike has had to give way to the need to foster trade and industry, and make such investment as may both promote the public good and benefit the investor. It would be surprising if a religious head could, on pain of excommunication, order his followers not to buy Government Loans, because loans are money borrowed by Government at interest.
39. A few things remain to be said. In view of the recent controversy about Sati it is enough to say that whatever may have been its original religious significance by 1832-1835 it was not compelled suicide but murder because unwilling women were forced to burn themselves. Assuming Sati to be a par of religion, though this is strongly contested, morality demands its suppression because murder is a grave crime. Secondly, the institution of devadasis even if it is assumed to be apart of religion, in substance, involves prostitution of women dedicated to the Temples and is clearly opposed to morality. Further, considerations of health to which the freedom of religion is subject justify the raising of age consent of marriage as has been done before and after the Constitution.
40. Again, is attractive at first blush to refer to American decisions on the First Amendment to the U.S. Constitution and the question is asked why cannot our judges follow those decisions? The answer is simple. The First Amendment to the United States Constitution confers freedoms in absolute terms. Our Constitution does not. The First Amendment runs:
"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press: or the right of the people peaceably to assemble, an to petition the government for a redress of grievances".
It will be seen that the freedoms are conferred in absolute terms. And, subject to the fluctuating composition of the U. S. Supreme Court, the trend has been to make as few exceptions to the freedoms there granted as possible. For, the freedoms there granted are the rule and restrictions on those freedoms the exceptions evolved by the Courts. In our Constitution, the freedoms granted by fundamental rights are not absolute as we have already seen. In fact, Mr. Justice Doulgas of the U. S. Supreme Court in a celebrated case held that censorship of cinema films was constitutionally void, but he added:
"If we had a provision in our Constitution for 'reasonable' regulation of the press such as India has included in hers; there would be room for argument that censorship in the interests of morality would be permissible".
41. I am aware that the enforcement of laws which are violated is the
duty of Government, and in a number of recent cases that duty has not
been discharged. Again, in the last instance blatant violation of religious
freedom by the arbitrary action of religious heads has to be dealt with
firmly by our highest Courts. This duty was resolutely discharged by our
highest Courts. This duty was resolutely discharged by our High Courts
and the Privy Council before our Constitution. No greater service can
be done to our country than by the Supreme Court and the High Courts discharging
that duty as resolutely disregarding popular clamour and disregarding
personal predilections. I am not unaware of the present political and
judicial climate. But I would like to conclude with the words of a very
great man "never despair", for when evil reaches a particular
point, the antidote of that evil is near at hand.