Arya Samaj Education... v. The Director Of Educ...

V.S Deshpande, J.:— Who are the “minorities based on religion” under Articles 30 (1) of the Constitution qualitatively and not merely numerically ? To consider this question, not covered by authority, it is useful to read Article 30 (1) which is as follows: —

“All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.”

2. The Arya Samaj in this and in Civil Writ — 1110 of 1974 on the one hand and the Jains in Civil Writ 96 of 1975 and the Sikhs in Civil Writ 660 of 1974 on the other hand have claimed to be “minorities based on religions” within the meaning of Article 30 (1). If the claim is proved, they would have the right to establish and administer educational institutions of their choice. They contend that certain provisions of the Delhi School Education Act, 1973 and the Rules framed thereunder as also of certain circulars issued and administrative acts done in pursuance of them are invalid to the extent of their repugnancy to the fundamental rights guaranteed by Article 30 (1). The Union of India, the Delhi Administration and the Directorate of Education, Delhi, on the one hand, and certain teachers employed in some of the schools of the petitioners on the other hand resist these writ petitions. The preliminary ground raised by the respondents is that the petitioners are not “minorities based on religion” and are not, therefore, entitled to the protection of Article 30 (1). Arguments on this preliminary issue alone joined between the parties have been heard. The common stand of the respondents against the Arya Samaj, the Jains and the Sikhs is that they are all parts of Hindu religion. As the Hindus form the majority in the Union Territory of Delhi, none of the petitioners can be called to be a “minority based on religion” in Delhi. Before considering the individual contentions of the petitioners, the meaning of the expression “minorities based on religion” may be considered. To attract these words three elements are necessary, namely, (1) existence of a minority, (2) it being based on religion, and (3) the basis being “religion” in the sense in which the word is used in Article 30 (1).

Meaning of “Minority” in Article 30 (1):

3. Originally the draft of the Fundamental Rights was submitted along with the Report of the Sub-Committee on Fundamental Rights on 16th April, 1947 to the Constituent Assembly. It did not contain any provision corresponding to Article 30 (1). (B. Shiva Rao II, The Framing of India's Constitution, 169 to 176). K.M Munshi, however, submitted a letter (Ibid., 202) in which the right now contained in Article 30 (1) (along with some other rights) was proposed to be conferred on “national minorities . . . based on religion.” Munshi explained the genesis of his proposal as being from the minorities rights embodied in the Police Treaty of 28th June 1919 which became a part of the Polish Constitution (Ibid., 278). It is well known that the problem of national minorities bedevilled Europe and was tried to be settled by the Treaty of Versailles after the First World War, the Polish Treaty being a part of the settlement. The political element in the use of the word “minority” is signified by the adjective “national” to qualify the word “minority” both in the Polish Treaty and in Munshi's draft. Munshi's proposal was accepted by the Sub-Committee on Minorities and was embodied as an annexure to their interim report (Ibid., 209). Later, para 18 of the draft Fundamental Rights contained the provisions corresponding to the present Articles 29 and 30 of the Constitution. In this draft both these rights were conferred on “minorities”. The Drafting Committee, however, distinguished between the right of any section of citizens to conserve their language script or culture (later embodied in Article 29) and the right of all minorities based on religion or language to establish and administer educational institutions of their choice (latter embodied in Article 30). The omission of the word “minorities” from the draft fundamental right relating to the conservation of language, script or culture was objected to by Shri Lari. Dr. Ambedkar thereupon explained the reason for this omission in the following words: —

“The first point that I would like to submit to the House as to why the Drafting Committee thought it necessary to alter the language of paragraph 18 of the Fundamental Rights is this. On reading the paragraph contained in the original Fundamental Rights, it will be noticed that the term “minority” was used therein not in the technical sense of the word “minority” as we have been accustomed to use it for the purposes of certain political safeguards, such as representation in the Legislature, representation in the services and so on. The word is used not merely to indicate the minority in the technical sense of the word, it is also used to cover minorities which are not minorities in the technical sense, but which are nonetheless minorities in the cultural and linguistic sense. For instance, for the purposes of this article 23, if a certain number of people from Madras came and settled in Bombay for certain purposes, they would be, although nor a minority in the technical sense, cultural minorities. Similarly it a certain number of Maharashtrians went from Maharashtra and settled in Bengal, although they may not be minorities in the technical sense, they would be cultural and linguistic minorities in Bengal. The article intends to give protection in the matter of culture, language and script not only to a minority technically, but also to a minority in the wider sense of the terms as I have explained just now. That is the reasons why we dropped the word “minority” because we felt that the word might be interpreted in the narrow sense of the term, when the intention of this House, when it passed article 18, was to use the word “minority” in a much wider sense, so as to give cultural protection to those who were technically not minorities but minorities nonetheless.” (VII, Constituent Assembly Debates 922-23).

4. The distinction made by Dr. Ambedkar between the technical and the non-technical senses of the word “minority” is important. The former sense was used in connection with reservations for minorities in Legislatures and services Muslims for instance, were such a minority. But even a part of the majority community, that is, the Hindus, could become a linguistic minority when people of one linguistic area were to migrate to another. This is the non-technical sense of minority. To dispel the uncertainty when the word “minority” is used in these two different senses, it was dropped from Article 29 (1) and in its place the words “any a section of the citizens” which now find part in Article 29 (1) were substituted.

5. In article 30 (1) also technical minorities were included in the words “minorities based on religion” and non-technical ones in the words “minorities based on language.” By way of an amendment, Pandit Thakur Das Bhargava pointed out that the words in draft article 23 (3) [the predecessor of the present article 30 (1)] the words minorities based on “religion, community or language” should be amended by the deletion of the word “community”. He explained the object of the amendment as follows: —

“Now, Sir, the word “community” is sought to be removed from this provision because “community” has no meaning. If it is a fact that the existence of a community is determined by some common characteristic and all communities are covered by the words religion or language, then “community” as such has no basis.” (VII, C.A.D 898).

This amendment was accepted by Dr. Ambedkar and the word “community” was dropped inasmuch as a minority based either on religion or on language necessarily covered the word “community” which was itself based either on religion or language. (B. Shiva Rao: The Framing of India's Constitution, A Study, 280-281).

6. This discussion preceding the enact of Articles 30 (1) and the relevant discussion on the enactment of Article 29 (1) would give us an insight into the sense in which the constitution makers used the word “minority” in Article 30 (1). Firstly, the context of history. The problem of minorities prior to the Constitution only related to the minorities which claimed to be separate from the majority, namely, the Hindus. These minorities were Muslims, Christians and the Sikhs. Secondly, no section of Hindus was treated as a minority. The attempt of the British Indian Government to separate the Scheduled Castes from the Hindu fold was defeated by the fast undertaken by Mahatma Gandhi and the agreement of Dr. Ambedkar, the leader of the Scheduled Castes, not to claim separate electorates for the Scheduled Castes on the lines of the Muslims. Thirdly, the word “community” denoted either the majority community, the Hindus by religion or the minority communities based on religious separate from Hinduism such as Islam, Christianity and Sikhism. This is why the words “communal award”, “communalism”, “communal reservation” and “communal” always referred to the community based on religion in the Indian context. The non-political sense of community as being based on language acquired significance only later.

7. In considering the meaning of a statute, particularly of the Constitution, the context furnishing the necessity for the enactment and giving the reasons for it becomes important when the words used would have one meaning in such context but may be liable to have a different meaning divorced from the context. (Shivanarayan Kabra v. State Of Madras, AIR 1967 S.C 996 at 989 column 2, (1) and Management, Shahdara (Delhi) Saharanpur Light Railway Co. Ltd., v. S.S Railway Workers Union, AIR 1969 S.C 513, (2) Headnote A). In Rt. Rev. Bishop S.K Patro v. State of Bihar, (1970) 1 S.C.R 172 at 179 (3), Shah J. speaking for the Constitution Bench observed in relation to Article 30 (1) of the Constitution that “persons setting up educational institutions must be resident in India and they must form a well-defined religious or linguistic minority”. No section or class of Hindus can be said to be a well-defined religious minority in the sense in which the expression could apply to the Muslims, Christians and Sikhs. In Ganpat v. Returning Officer (1975) 1 S.C.C 589 at 595 (1), it was observed in para 11 as follows: —

“In this connection it is necessary to remember that Hinduism is a very broad based religion. In fact some people take the view that it is not a religion at all on the ground that there is no one founder and no one sacred book for the Hindus. This, of course, is a very narrow view merely based on the comparison between Hinduism on the one side and Islam and Christianity on the other. But one knows that Hinduism through the ages has absorbed or accommodated many different practices, religious as well as secular, and also different faiths. One of the witnesses has described that he considered Buddha as the eleventh Avtar. Instead there are historians and sociologists who take the view that Buddhism disappeared from India not by any other means but by being absorbed into Hinduism. Therefore, if a certain community in a spirit of protest says that they would give up Hinduism and adopt Buddhism it is not likely to make much change either in their beliefs or in their practices. Centuries of habit and custom cannot be wiped out overnight.”

CONCLUSION:

8. The word “minority” used in the expression “minorities based on religion” used in Article 30 (1) connotes only those religious minorities which had claimed political rights separate from those of the Hindus prior to the Constitution such as the Muslims and the Sikhs. The Christians did not seem to have claimed separatist rights but they were nevertheless a distinct minority based on a religion which at no stage was regarded as a part of Hinduism. Because of the political origin of the sense in which the word “minority” was used in India, it was never applied to a part or a section of the Hindus such as the Arya Samaj and the several other sects. of the Hindus. During the Debates of the Constituent Assembly also it is only this aspect of the minority problem which was discussed. No section or class of Hindus was ever referred to as a minority. In Article 30 (1), therefore, the word “minority” cannot apply to a class or a section of Hindus.

MEANING OF THE WORDS “BASED ON RELIGION”:

9. A minority may be distinguished from the majority by more than one features. The minority problem in India arose on the basis of the separatist feelings of certain groups whose religion became the basis of their separate identity. The two nation theory which led to the Partition of the country was based on religion which led to nationhood in Pakistan. The words “based on religion” emphasise that unless the only basis of a minority is religion, it is not to be covered by the words “minorities based on religion”. In all religions sub-sections, sects. or classes exist. For instance, the Arya Samajis among the Hindus or the Catholics or the Protestants among the Christians or the Shias or the Ahammadiyas among the Muslims or the Namdharies among the Sikhs may be called religious denominations inasmuch as they are numerically less in number professing doctrines which are different than those of the majority although the religion is the same.

CONCLUSION:

10. The words “based on religion”, in our view would mean that the only or the principal basis of a minority must be their adherence to one of the many religions and not a sect. or a part of the religion and that the other features of the minority are subordinate to the main feature, namely, its separateness because of its religion.

MEANING OF “RELIGION” IN ARTICLE 30 (1):

11. It was argued for the Arya Samaj that the word “religion used in Article 30 (1) means not only the religion such as Hinduism, Islam or Christianity as a whole but even sects or parts of such religions. It was said that a religious denomination would also be a religion within the meaning of Article 30 (1). It is, therefore, necessary to know the precise meaning of “religion” in Article 30 (1).

12. The different rights in relation to religion are the subject-matter of Articles 25 to 30 of the Constitution. Articles 25 to 28 are grouped under the heading “Right to Freedom of Religion” and articles 29 to 30 are placed under the group “Cultural and Educational Rights.” Each of these articles have separate marginal headings. This would show that different rights and different aspects relating to religion were being considered in each of these articles and in different parts of each of them. Article 25 (1) gives the right to profess, practise and propagate religion to each individual irrespective of whether he belongs to the majority or the minority. An individual need not subscribe to the religion as a whole but may do so only in respect of the basic tenets. If a law or administrative action contravenes the particular part of the religion professed by an individual, his right to profess, practise or propagate that religion may be affected. In this context, therefore, the word “religion”, means the distinct religion and all recognised practices thereof.

13. Article 25 (2) (a) shows that the Constitution does not leave it to the opinion of the members of a particular religion to determine what the essence of their religion is. The freedom of religion given by Article 25 is restricted to such religion as may be left after the State regulates or restricts any political, economic, financial or other secular activity which may be associated with religious practice. The well known difference between religion and law is that the sanction of the former is only moral and ethical while that of the latter is legal to be enforced by the State. Constitution is the supreme law. Religion being different from law, none of them will destroy the other. Dr. Luthera has charged Indian Legislatures with interfering with religion in the course of reform of the Hindu Law. [“The Concept of the Secular State in India” (1964) pages 96-97]. This only means that some legislation is contrary to some religious practices of the Hindus. But as Dr. J.D.M Derrett points out: —

“The Constitution does not in face prevent this, if indeed it has happened, and it would be odd if it did. The whole course of Indian legal history, as we have seen, evinces a tendency to manipulate the sources of law. . . Thus it would have been very strange if the Constitution had introduced restraints upon the legislatures' capacity to legislate in matters of religion or appertaining thereto, restraints which had not been recognised by the previous Government . . . the reform of the Hindu Law which was the first step towards the Indian Civil Code interfered with Hindu religious beliefs and practices.” [Religion, Law and the State in India (1968) pages 438 to 440].

Dr. Derrett returns to this point and says: —

“The Constitution, as we have seen, does not start with the assumption that religion may freely be practised, or that beliefs which are religious deserve protection against the state. Like many of the Constitution's articles, Article 25 sets out a fashionable proposition subject to so many qualifications and restrictions that the reader wonders whether the so-called ‘fundamental right’ was worth asserting in the first place.” (Ibid., page 541).

14. The Constitution was, therefore, free to adopt what religion was for its purposes. The fundamental right to profess, practise and propagate religion guaranteed by Article 25 (1) was whittled down by the power given to the State to make any law under Article 25 (2) (b) which empowered the State to make any law “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 says that the searing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II says that in sub-clause (b) of clause (2) of Article 25, the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindi religious institutions shall be construed accordingly. Article 25 deals with the broadest aspect of religion. What it says about it would, therefore, have a bearing on all articles from 25 to 30. Firstly, sub-clause (b) of clause (2) refers to all classes and sections of Hindus. The State can throw open Hindus religious institutions of a public character to them. The expression “all classes and sections of Hindus” is broad enough to comprise all the Hindus. Article 25 (1) deals with “religion”. The “Hindu religious institutions” referred to in sub-clause (b) of clause (2) must, therefore, be confined to the “Hindu religion”. This would necessarily mean that “Hindu religious institutions” would not cover the institutions of religions other than the Hindu religion. But the Sikh, Jain and Buddhist religions do not recognise class and sectional distinctions to the extent to which they have riddled the Hindu society. The followers of these religions would, therefore, be glad to throw open their religious institutions to even the lower classes among their followers. In fact the Sikhs insist that there are no lower classes amongst them and all are equals. Even then the privilege given by Article 25 (2) (b) is a significant special privilege and Hindu religion must be understood as a definite “religion” separate from other religions. It is only if the Sikhs, Jains and Buddhists had not been separate religions but parts of Hinduism that all classes among them could have claimed the benefit of sub-clause (b) of clause (2). The Constitution recognised, what was already an established historical truth, that for religious, political and other reasons, Sikhism, Jainism and Buddhism were religions separate from Hinduism. It did so by enacting Explanations I and II. In Explanation I, the use of the expression “the Sikh religion” meant that it was a religion different from Hinduism. In Explanation II, the reference to “persons professing the Sikh, Jaina or Buddhist religion” meant that persons following these religions were not legally persons following the Hindu religion. They would not have come within the coverage of Article 25 (2) (b) but for Explanation II. The object of Explanation II, therefore, was to widen the concept that Hindu religious institutions were broadbased and Sikhs, Jains and Buddhists although separate religions could enjoy the right of temple entry. This object would not have been achieved if Explanation II had not been enacted.

15. Counsel for the respondents relied upon Pannalal v. Sitabai, AIR 1953 Nagpur 70 (5), in which Hidayatullah and V.R Sen, JJ., held that the Hindu Women's Rights to Property Act applied to Jains. Learned counsel relied on the observations of Dr. Hari Singh Gour cited with approval in para (11) that “the Jains are another sect of Hindu dissenters who still remain Hindus and to whom the Hindu Law applies”. This observation must be understood in its context. There are two different contexts in which the words “Hindu religions” are used. One is the context of doctrine. For this purpose, the Hindu religion is different from the Jain, Buddhist or the Sikh religion. The other context is that of the application of the Hindu personal law. This may be called the historical, cultural and personal law contact. Because historically the Jains, Buddhists and the Sikhs have emerged out of the Hindu people, the personal law of the Hindus continued to apply to them even after they had separated from the Hindu fold. The growth of personal law takes centuries and no separate personal law was developed for being applicable to the Buddhists, Jains and Sikhs apart from special or local customs. Therefore, doctrinally the Sikhs, Jains and Buddhists are different from the Hindus. But for the purpose of the application of the personal law, they are governed by Hindu Law. The only known exception so far as the Sikhs are concerned is the Anand Marriage Act in accordance with which the marriages amongst the Sikhs are performed according to different rites. The second context must not be confused with the first.

When the attention of the learned Judges was invited to article 25 of the Constitution to support the argument that Jains were not Hindus, the argument could have been met simply by pointing out that Article 25 only indicated that doctrinally Jain religion was different from Hinduism, but it did not mean that the Hindu Law did not apply to the Jains. Unfortunately, in paragraph (17) the learned Judges disposed of the argument by the following statement: —

“As regards the inclusion of the term ‘Jain’ in the Constitution, it may be that in spite of the accepted law on the subject, the framers of the Constitution felt having regard to the differences in the two faiths, that an express mention might be made of all the faiths ‘Exabundanti cautela’. The reasons which impelled the legislature to include the term ‘Jain’ in addition to the term ‘Hindu’ in the Indian Succession Act, viz., to put the matter beyond all controversy, might well have been present to the Constituent Assembly. Again faith is one thing and law is another. In any event, the specific mention in article 25 of the present constitution cannot be taken to have undone the long series of decisions which have uniformly been rendered by the various High Courts in India and the Privy Council on the subject of Jains and their governance by Hindu Law, particularly in the matter of inheritance”.

16. We respectfully agree that faith is one thing and Law is another and we understand that what is meant is that for the purpose of the application of the Hindu Law the Jains would be Hindus. But we must respectfully observe that the object of mentioning Sikhs, Jains and Buddhists as separate religions in Explanation II to Article 25 (2) (b) was not at all ex abundanti cautela but just the reverse of it. It was because the Sikhs, Jains or Buddhists were separate religions and they could not have been included among the Hindus in Article 25 (2) (b) and, therefore, it was absolutely necessary to enact Explanation II to give the followers of Sikh, Jain and Buddhist religions the benefit of Article 25 (2) (b) even though they belonged to religions other than Hinduism and their religious institutions would not be included in “Hindu religious institution” but for Explanation II.

17. Secondly, there is a dichotomy between the words “all classes and sections of Hindus” in Article 25 (2) (b) and the “persons professing the Sikh, Jaina of Buddhist religion” in Explanation II. The different classes and sections of Hindus could have included persons professing the Sikh, Jain or Buddhist religion only if these religions were a part of the Hindu religion for the purpose of the Constitution. Had they been so, Explanation II could be construed either as ex abundanti cautela or as superfluous. On the contrary, the use of the word “Hindus” in Article 25 (2) (b) and of the words “Sikh, Jain and Buddhist” in Explanation II shows that the latter are followers of religions other than the Hindu religion and that they are not merely sects or sectionals faiths which are a part of the larger Hindu religion. That the Constitution makers intended to make the distinction between Hindu religion on the one hand, and the Sikhs, Jains and Buddhist religions on the other hand, as being separate religions is capable of further proof.

18. Article 44 of the Constitution requires the State to endeavour to secure for the citizens a uniform civil code throughout the territory of India. Entry 5 of the Concurrent List authorises the Central and the State legislatures to make laws regarding inter alia “all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.” The Constitution thus authorises the legislatures to supersede personal laws and to enact legislation contrary to personal laws. The beginning of the reform was made with the Hindus by the enactment of the Hindu Code in four instalments, namely, the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956. Before their enactment Hindu Law applied not only to Hindus by religion but also to Sikhs, Buddhists and Jains by religion because the followers of these latter religions historically and culturally came out of the Hindu religion and community. For the purpose of the application of the Hindu Law, these other communities were also regarded as Hindus. But they were not regarded as Hindus for doctrinal purposes. The Sikhs were also regarded as a separate religious community for political purposes. It was confusing, therefore, to regard them as Hindus in the larger sense and non-Hindus in the narrower sense. The Constitution, therefore, first showed in Article 25 the two different contexts in which the Sikhs, Jains and Buddhists could be treated as Hindus and in which they would not be regarded as Hindus. Precisely in accordance with this dichotomy recognised by article 25 of the Constitution, Parliament enacted one section in each of these four statutes to maintain the dichotomy between those who are Hindus by religion and those who are Sikhs, Buddhists or Jains by religions even though the legislation would apply to all of them just as the Hindu personal law used to apply to them before the legislation. Section 2 of the Hindu Marriage Act applies the said Act (a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiya, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj, and (b) to any person who is a Buddhist, Jaina or Sikh by religion. The legislature could have simply said that the legislation applied to Hindus, Sikhs, Buddhists and Jains. It could then still have been argued that the Sikhs, Buddhists and Jains were also parts of larger Hinduism. But the legislature obviously intended to prevent any one from making such argument and, therefore, they expressly recognised that Sikhism, Buddhism and Jainism were religions separate from Hinduism.

19. The recognition of Sikhism, Buddhism and Jainism as separate religions having been made by article 25 of the Constitution itself which is the supreme law, no question could arise of any one challenging the repetition of such recognition in the Hindu Code.

20. The question is whether it is possible for any one to contend that in spite of Article 25 and the Hindu Code, the Sikhs, Jains and Buddhists are still Hindus for the purpose of Article 30 (1). It was argued for the respondents that the Sikhs, Buddhists and Jains were recognised as separate religions only for the purpose of temple entry. The Sikhs were also recognised as a separate religion for the purpose of carrying kirpan. It is quite true that Explanations I and II apply only to these contexts. But this is no reason why the Constitution makers should have recognised Buddhism, Sikhism and Jainism as separate religions, they could have simply given the right to carry kirpans to the Sikhs and the right of temple entry to Sikhs, Buddhists and Jains without stating that Sikhs, Buddhists and Jains belong to religions separate from Hinduism. The definite assertion of the separateness of these religions cannot, therefore, be limited only to the purpose for which it was made. The significance extends beyond the purpose. There was no reason why any distinction should be made between Article 25 on the one hand and articles 26 to 30 on the other hand so that the Sikhs, Buddhists and Jains are separate from the Hindus only for the purpose of Article 25 but are included in the Hindus in respect of the other articles. Similarly, the declaration in the Hindu Code that these religions are separate from Hinduism was not necessary if the Hindu Law was only to apply to the Sikhs, the Buddhists and the Jains. That could have been done without declaring them as separate religions. As Dr. Derrett has pointed out, it was open to the Constitution makers to give such meaning to religion as they chose. Their competence was not limited by any religious doctrine. Even if, therefore, for the purpose of argument it is assumed that historically and culturally it is provable that Sikhism, Buddhism and Jainism are not so much as separate religions but only separate sects arising out of and based on Hinduism, and, therefore, parts of Hinduism, yet it was open to the Constitution makers to regard them as separate religions. A line has to be drawn somewhere between religion and religion or between a religion and a sect. If the Constitution makers have chose to draw the line between Buddhism, Jainism, Sikhism and Hinduism demarcating them as separate religions it is not open to anyone to argue that they still remains one religion particularly when in the four statutes constituting the Hindu Code passed in 1955-56 Parliament has continued to draw the same line of demarcation between the Hindu religion on the one hand and the Buddhist, Sikh and Jain religions on the other hand.

21. Article 26 gives certain fundamental rights to a religious denomination or any section thereof meaning a sect or a group or an organisation of a religion of a section of religion. Since Arya Samaj is a distinct section of a Hinduism which emphasises the Vedas as being the purest source of Hinduism and decries idolatry and superstitions, there should be no difficulty in acknowledging it as a religious denomination entitled to exercise the right under Article 26. It was, however, argued for it that a religious denomination can also exercise the right to establish and administer educational institutions of its choice under Article 30 (1). Reliance was placed on the decision of the Supreme Court in D.A.V College, Jullunder v. State of Punjab, (1971) Supp. S.C.R 688. The writ petitions in that case were filed by the D.A.V Colleges asserting that Arya Samaj was a religious minority and also a religious denomination. It was not disputed by the State of Punjab that Hindus were a minority in the Punjab. It was, however, disputed that the Arya Samaj was a linguistic minority. The Supreme Court did not find it necessary to decide whether the Arya Samaj was a linguistic minority or religious denomination because it held that it was a religious minority with a distinct script of its own. Most respectfully we remained ourselves that the question is whether the Arya Samaj is “a minority based on religion” under Article 30 (1). This will be the meaning to be given to the expression “a religious minority”. What was the object of guaranteeing the right under Article 30 (1) ? The right to manage educational institutions being derived from the political concept of a minority, as shown above, was confined only to politico-religious minorities, namely, those minorities based on religion which kept their identity separate from the majority, namely, the Hindus. The necessity of giving them autonomy arose only because of their desire to have a separate identity. Classes and sections of Hindus did not desire to have an identity separate from the majority. There was no need, therefore, for giving them the right guaranteed by Article 30 (1). Throughout the discussion in the Constituent Assembly, the rights dealt with by Articles 29 (1) and 30 (1) were thought of only in relation to religious and linguistic minorities. Just imagine the various classes and sections of the Hindus being regarded as minorities for the purpose of Article 30 (1). There are so many classes and sections among the Hindus with varieties of religious opinions that the Hindus will be divided into numerous sections and classes. If each of them were to constitute a minority under Article 30 (1), the Hindus would not remain a majority at all but would consist of numerous religious minorities. Similarly, Sikhs who are a majority in the Punjab have also different sections and sects among themselves. If they are divided into various sects and sections and each of these sections was to be regarded as a minority based on religion under Article 30 (1) then the Sikhs also would cease to be a majority in the Punjab. But the Hindus were admitted to a minority in the Punjab before the Supreme Court in the D.A.V College, Jullunder (supra) case with the obvious implication that the Sikhs were a majority. This implies that the test of minority under Article 30 (1) is that the religion as a whole constitutes minority or a minority as opposed to a religion in majority in a given State or Union territory. Sections of the religion do not constitute different minorities. We have already stated that the meaning of the word “religion” in Article 25 as also in the Hindu Code expressed by the Constitution makers and Parliament is the religion as a whole and not its sections and sects. As observed by Herman Finer, “to admit the right of a minority to rule [to the right under Article 30 (1) in our context] involves the difficulty — with which minority ? It gives all minorities equal right — that is, it destroys the integration of society.” [The Theory and Practice of Modern Government (1961) page 81]. We are of the view, therefore that the meaning of religions in Article 30 (1) is confined to the well-defined religions of India such as Hinduism, Islam, Sikhism, Christianity, Jainism, etc.

ARYA SAMAJ: —

22. Why was it necessary for the Supreme Court to inquire in the D.A.V College, Jullunder (supra) case as to whether the Arya Samaj was a religious minority even though it was undisputed that the Hindus as a whole were a religious minority ? The reason is obvious to us from the pleadings made by the Arya Samaj before the Supreme Court as also before us. The petitioners went before the Supreme Court as they came before us simply as Arya Samajis and not as Hindus. On the pleadings, therefore, the Supreme Court had to consider whether they constituted a religious minority. They could not decide the case on the admission of the State of Punjab because the admission was in relation to Hindus and not in relation to Arya Samajis as such. But this and the connected judgment of the Supreme Court in D.A.V College, Batinda v. State of Punjab, (1971) Supp. S.C.R 677 (7), have conclusively shown that Arya Samaj was not a separate religion but a part of Hinduism. This will be clear from the following findings: —

(1) Swami Dayanand Saraswati was a founder of an organisation (not of a religion).

(2) Arya Samaj, a vigorously reforming sect of modern Hinduism, was founded in 1875 by Swami Dayanand Saraswati (quoting from II, Encyclopedia Britannica 558).

(3) Comparison between Martin Luther and Swami Dayanand Saraswati quoting from Encyclopedia of Religion and Ethics. Just as Martin Luther founded Protestantism as a sect of Christianity similarly Swami Dayanand founded Arya Samaj as a significant sect of Hinduism. Just as Protestantism is not a separate religion different from Christianity, Arya Samaj is not a separate religion different from Hinduism.

(4) The argument of Shri Setalved that there was nothing to indicate that Arya Samajis should be Hindus was rejected on the ground that it overlooked the basic tenets of the sect in that it admits to membership only those Hindus who subscribe to the decalogue and its beliefs in the cannons of vedic interpretation laid by Swami Dayanand. But non-Hindus had to undergo Shudhi ceremony.

23. Learned counsel for Arya Samaj stressed the finding of the Supreme Court that Arya Samaj “can be considered to be a religious minority, at any rate as part of the Hindu religious minority” in the State of Punjab. It was argued that this amounts to two findings, namely, (1) that Arya Samaj in itself is a religious minority, and (2) that it is a minority as a part of Hindu religion. This argument is opposed to the interpretation of this finding by the same Bench of the Supreme Court in D.A.V College, Batinda v. State of Punjab, at page 681G (supra). The Court summarised their decision in the D.A.V College Jullunder (supra) case in the following words: —

“. . . that the Arya Samajis who are part of the Hindu community in Punjab are a religious minority.”

Both the judgments were delivered on the same date by the same Bench and by the same learned Judge. If the Bench has chosen to interpret their finding in the Jullunder case as above in the Batinda case, that interpretation is conclusive and binding on us.

24. The finding that Arya Samaj can be considered to be a religious minority at any rate as a part of the Hindu religious minority could be returned by the Supreme Court only because the Hindus were a minority in the Punjab. Such a finding could not have been returned if the Hindus were a majority. For the same reason, if a section or sect of the Sikhs who are a majority in the Punjab had claimed to be a minority based on religion under Article 30 (1) in the Punjab, it could not have been held to be such a minority. The meaning of the words “at any rate as part of the Hindus religious minority” used by the Supreme Court at page 700 of the D.A.V College, Jullunder (supra) case have to be understood in this context of the Hindu being admittedly a minority based on religion in the Punjab. That fact would, at any rate or ultimately, always mean that the Hindus or any part of them are a minority based on the Hindu religion in the Punjab. The finding that Arya Samaj was a religious minority has to be understood to mean that it was a part of Hindu religion which itself was the religion of a minority in the Punjab.

25. The decision of the Supreme Court in Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya, (1966) 3 SCR 242 (8), was relied upon for the respondents to show that at page 264 of the report, the development of Hindu religion was said to include not only the Arya Samaj founded by Swami Dayanand and other sects and cults which are parts of Hinduism but also Buddhism, Jainism and Sikhism. It was argued, therefore, that all of them stand on the same footing and are parts of Hinduism. With respect, we understand this observation to have been made in the context of the development of Hindu religion and philosophy to show “the sweep of the broad and progressive Hindu religion”. It was further observed by their Lordships on the same page that “we are dealing with this broad and comprehensive aspect of Hindu religion”. As already observed us above, Hinduism has two aspects, a broad one which is historical and cultural and a narrow one which is legal. While Sikhism Jainism and Buddhism may have come out of Hinduism for the purpose of history and culture, they are not parts of Hinduism for the purpose of the Constitution and the law. This is why the Court referred to article 25 of the Constitution and section 2 of the Hindu Marriage Act later to bring out those differences between the broad and the narrow senses. This decision of the Supreme Court is, however, an authority for the proposition that the Arya Samaj no less than the Swaminarayan cult is an integral part of Hinduism not only for the purposes of Article 25 but for the Constitution as such and also for the purposes of the Hindu Code.

26. Firstly, in the pleadings of the Arya Samajis it has never been stated that Arya Samaj is a religion separate from Hinduism and that Arya Samajis are not Hindus. On the contrary, the petitioners have reproduced the passage from II, Encyclopedia Britannica 558, expressly stating that “Arya Samaj a vigorously reforming sect of modern Hinduism, founded in 1875 by Swami Dayanand Saraswati and sought to revitalize Hindu life and to instill self-confidence and national pride among Hindus”. At page 154 of the paperbook the Arya Samaj petitioners in the rejoinder actually admit that Arya Samaj is a part of Hinduism. Secondly, in the Satyarth Prakash which is the main religious book of the Arya Samaj, Swami Dayanand himself stated that he had no intention of founding a new sect or a new religion (Light of Truth, page 723). Lala Lajpat Rai who was perhaps the greatest Arya Samaj leader after Swami Dayanand has in his “History of the Arya Samaj” repeatedly asserted that the Arya Samajis are Hindus. For instance, at page 125 he observed: —

“The Arya Samajists occupy an admittedly sound position in Hindu society. Hinduism in Northern India cannot be thought of without the Arya Samaj. It is not only a source of strength to Hinduism and Hindus but is the principal effective agency.”

Sir, Gokul Chand Narang in his book “Real Hinduism” also points out that “the members of the Arya Samaj are the most wide-awake, energetic and most public-spirited members of the Hindu community and that among the Hindus the Aryas are the only people who in recent times have willingly courted persecution and suffered martyrdom in defence of their religion (pages 187 and 191). Bhai Parmananda in his book “Hindu Sangathan” also points out that the Arya Samaj and the Hindu Sangathan have the same ideal before them and that Arya Samaj is not a new religion (page 79).

27. As against this, the petitioners rely on Dayanand Granthmala, Volume II, pages 876-877 and Upadesh Manjari, page 106, in which Swami Dayanand is said to have pointed out that the name of this country should have been Arya Khanda and not Hindustan. He urged that the word “Hindu” should be given up and substituted by the word “Arya”. The word “Arya” here is only used to emphasise the original and the pure concept of the Hindus as distinguished from the word “Hindu” which has other associations which the Arya Samaj does not subscribe to. This does not mean that Arya Samaj has gone out of the Hinduism but only means that it believes only in the purest form of Hinduism. Ganga Prasad Upadhyaya in his book “The Origin, Scope and Mission of the Arya Samaj” points out that in the Census Reports from 1891 to 1931 the number of Arya Samajis was shown separately. But this was not done because the Arya Samaj was regarded as a separate religion but just because in these days separate enumeration of castes and classes among the Hindus used to be made. Since then there is no separate enumeration of Arya Samajis at all. On the other hand, in all the Census Reports religionwise enumeration is confined only to the recognised religions of India such as Islam Christianity, Sikhism, etc.

28. Reliance was placed on the decision in Arya Pratinidhi Sabha Patna v. State of Bihar, AIR 1958 Patna 359 (9), (Ramaswami C.J and Choudhary, J.). But in this very decision at page 360, paragraph (3) the Arya Samaji petitioners themselves asserted that the members of the managing committee of their schools were all Hindus and the special features of the school education were the teaching of Vedic culture. There was no finding by the Court that Arya Samaj was a separate religion apart from Hinduism. In Dipendra Nath Sarkar v. State of Bihar, AIR 1962 Patna 101 (10), (Ramaswami, C.J and Sahai, JJ.) the Court gave finding that Brahmo Samaj was a distinct religion separate from Hindu religion. Though this is opposed to what is enacted by Parliament in the Hindu Code, the finding of fact may have been based on the evidence produced in that particular case. We are not concerned with it. In Dipendra Nath Sarkar v. State of Bihar, AIR 1963 Patna 54 (11), (Ramaswami, C.J and Choudhary, J.) the Brahmo Samaj was even regarded as a religious minority for the purpose of Article 30 (1). In paragraph (15) it was stated that this view gained support from the previous decision of the same Bench in AIR 1958 Patna 359. With great respect, however, the decision in AIR 1958 Patna 359 did not hold that Arya Samaj was a religion separate from Hinduism. Nor is there any authority for the proposition that Arya Samaj is not an important constituent of Hinduism for the purposes of Articles 25 to 30 of the Constitution. On the contrary, the intention of the Constitution makers was to treat it as one of the classes or sections of Hindus within the meaning of Article 25 (2) (b).

29. We find, therefore, that the Arya Samaj is a reformed sect of Hinduism which has revolutionised the Hindu way of thinking and that it is a part of Hinduism and not a separate religion in the Union territory of Delhi.

JAINISM: —

30. Not only the Constitution but also the Hindu Code and the Census Reports have recognised Jains to belong to a separate religion. In the Constituent Assembly in March-April 1947 a Memorandum was presented by the representatives of the Jain community stating that Jainism is separate from Hinduism and reliance was placed on the views expressed by Professor Dasgupta in his “A history of Indian Philosophy” and also by Jawaharlal Nehru in his “Discovery of India”. (II, The Framing of India's Constitution, pages 373 to 377). Heinrich Zimmer in “Philosophies of India” states that “Jainism denies the authority of the Vedas and the orthodox traditions of Hinduism. Therefore it is reckoned as a heterodox Indian religion”. (Page 217).

J.N Farquhar in “Modern Religious Movements in India” states that “Jainism has been a rival of Hinduism from the beginning”. (Page 324).

31. As against this, reliance was placed on certain decisions to show that Jains were governed by the Hindu law and were Hindus in larger historical and cultural perspective. These decisions do not show that for the purpose of the Constitution, the Jains are a part of the Hinduism. We hold, therefore, that for the purpose of Article 30 (1) the Jains are a minority based on religion in the Union territory of Delhi.

SIKHISM: —

32. In addition to the above reasons showing that the Sikhs were regarded as a separate religious community, it may be noted that the Punjab Sikh Gurudwaras Act, 1925, Section 2 (9) recognises Sikh religion to be separate from other religions. Similarly, the Delhi Management of Sikh Gurudwaras Act, 1971, section 2 (n) also defines a Sikh and shows that Sikhs are separate from Hindus. Judicial decisions have also held that Sikhs were different from Hindus in the narrower sense of having a religion separate from the Hinduism even though they may be governed by the Hindu Law. (Ram Parshad v. Shiromani Gurudwara Parbandhak Committee, AIR 1931 Lahore 161 (12), Hem Singh v. Basant Das, AIR 1936 Privy Council 93 (13), and Dharam Das v. The State of Punjab, AIR 1975 S.C 1069, para 12 (14). Lastly, the Sikhs were actually given separate electorate like Muslims in the Government of India Act, 1935. They are, therefore, a minority based on religion under Article 30 (1) of the Constitution in our view.

CONCLUSIONS:

33. (1) The writ Petitions filed by the Jain and the Sikhs petitioners (Civil Writs 96 of 1975 and 660 of 1974) are maintainable on the basis of the right guaranteed by Article 30 (1) of the Constitution.

(2) The Writ Petitions Nos. 334 and 1110 of 1974 filed by Arya Samaj schools are not maintainable under Articles 30 (1) of the Constitution. Nonetheless, the Arya Samaj is a religious denomination. As such it has a right to establish and maintain institutions for religious and charitable purposes. In Rev. Sidhajbhai Sabhai v. State of Bombay, (1963) 3 S.C.R 837 at 848 (15), the Supreme Court observed that: —

“In a larger sense an educational institution may be regarded as charitable”,

for the purpose of Article 26. In that case it was not necessary for the Court to express any opinion on the plea that the right of the petitioners guaranteed by Article 26 of the Constitution to manage the college was infringed by the impugned rules and orders issued by the Government of Bombay. Similarly, in D.A.V College, Jullundur (supra) case, referred to above, the Supreme Court did not consider it necessary to decide if the Arya Samaj was a religious denomination and, therefore, the question of considering their rights under Article 26 of the Constitution did not arise. In the present case, therefore, we will have to consider the rights of the Arya Samaj petitioners under Article 26 to establish and maintain the Arya Samaj schools as religious and/or charitable institutions within the meaning of Article 26 and manage its own affairs in the matters of religion. They may also be heard regarding their rights, if any, under Articles 25, 28 and 29 of Constitution of any other legal rights.

PER SAFEER J. As our discussion brings out articles 25 to 30 postulate that there cannot be a religion within a religion. There can be a religious denomination within a religion. Such denomination cannot be a minority based on a religion. The minority contemplated by Articles 30 (1) must be based on a religion which should be distinct from other religious or on a language distinct from other languages preferably recognised as separate languages.

35. The nation has to guard against all kinds of disruptions. There is a prevailing tendency in spiritual ambition which leading to diverse expositions is causing the coming into being of various religious denominations. Such denominations ought not to be allowed to prevail as religions and should not be confounded as separate religions. The concerned articles which we have discussed deserve a close re-examination. According to my appreciation in spite of the Partition of the country, the people of India gave the Constitution to themselves after keeping together all the well known religions which existed before the country was split up. The Constitution in origin is a secular constitution meant for all. Its directive principles indicate that the growth of a united nation in which all people may be living with satisfaction was the aim. It was not the aim to encourage fissiparous dissipating anti-national tendencies. No nation can afford to submit itself to a process of disintegration. I am saying this with all emphasis with the complete understanding that every individual has the right by himself or in association with others to practise any religion to which they may be devoted. The provisions in the Constitution are to be interpreted on the principle of harmonious construction and as advancing the basic concept that the people of India being “one” in themselves gave the Constitution to themselves. I agree with the conclusions in the main judgment and subscribe to the determination pertaining to the preliminary issue which it decides.

Ordered accordingly.