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Home Critical Analysis/Archives Report on the Situation of Ahmadi Muslims in Pakistan
Report on the Situation of Ahmadi Muslims in Pakistan

SUPREME COURT JUDGMENT - MAJORITY JUDGMENT — JUSTICE ABDUL QADEER CHAUDHRY'S COMMENTS

CIVIL APPEAL NO.412/1992.

ABDUL QADEER CHAUDHRY, J:- I have had the benefit of going through the draft judgment proposed to be delivered by my learned brother Shafiur Rahman, J., but with respect, I do not agree with the opinion of my learned brother.

The facts of the connected appeals have been fully enumerated in the proposed judgment and I need not repeat the same. So far as the present appeal is concerned, the facts giving rise to the proceedings are that the appellants belong to Ahmadia Community, (Quadianis), a non-Muslim religious sect. The Ahmadis throughout the world had decided to celebrate the centenary of their religion, which was founded on 23 March, 1889, in a befitting manner, commencing from 23rd March, 1989.

On 20 March, 1989, the Home Secretary, Government of Punjab, promulgated an order, under Section 144, Cr. P.C. banning the centenary celebrations, by the Quadianis in the Province of Punjab. The District Magistrate, Jhang, also passed another order dated 21st March, prohibiting the Quadianis of Jhang District, from undertaking the following activities:

"(i)
Illuminations on buildings and premises;
(ii)
Erection of decorative gates;
(iii)
Holding of processions and meetings;
(iv)
Use of loudspeakers and megaphones;
(v)
Raising of slogans;
(vi)
Exhibition of badges; buntings and banners etc.;
(vii)
Distribution of pamphlets and pasting of posters on the walls and wall writings;
(viii)
Distribution of sweets and service of food;
(ix)
Any other activity directly or indirectly which may incite and injure the feelings of Muslims".

It appears from the above, that what had been banned are the activities in public or in the view of the public, to save breach of peace and maintain the law and order.

The Resident Magistrate, Rabwah, informed the Ahmadia Community to remove ceremonial gates, banners and illuminations and also ensure that no more writings will be done on the walls. He further informed that the prohibitions contained in the order dated 21st March had been extended till further orders.

The appellants challenged the above orders by way of Writ Petition No.2089 of 1989, seeking declaration that their right to recount the important events of the last hundred years of their community and to celebrate the same in a befitting manner could not be denied to them. It was stated that they had planned to do that by wearing new clothes, offering thanks-giving prayers, distributing sweets among children, serving food to the poor and to assemble for meetings, to express their gratitude to God Almighty for favours and bounties bestowed by Him in the last hundred years. They contended that all the activities noted above, being protected and guaranteed by Fundamental Right, as embodied in Article 20 of the Constitution of 1973, the impugned orders were unlawful. It was further stated that none of the ingredients of Section 144 was present to attract the impugned orders. One of the appellants who was also convicted under Section 298-B of PPC, for using a badge of 'Kalima' and for saying 'Azan' had filed another petition. This section 298-B and another 298-C had been inducted in the PPC, by the Ordinance XX of 1984.

The case came up before a learned Judge of the Lahore High Court, who in his judgment considered very concisely the legal and constitutional questions raised in the case and has rendered a very balanced judgment. We highly appreciate that the learned judge relied in this respect, on precedents from the jurisdictions which are either secular or claim to be the champions of human rights. The controversy raised before the Court is, undoubtedly, of a very sensitive nature, concerning one's faith and belief and need a very dispassionate and careful approach, in order to inspire confidence and lend its judgment the necessary independence.

The main question involved is whether the impugned orders passed under Section 144 Cr. P.C. and the Ordinance XX of 1984 are violative of the Fundamental Right (Art 20) as given in the Constitution of Pakistan, 1973?

The appellants raised the following propositions for consideration:-

(a)
The finding of the Federal Shariat Court that the Ordinance is not contrary to Quran and Sunnah, is of no consequence, so far as this Court is concerned.
(b)
The Ordinance expressly and in no uncertain terms, is total denial of religious freedom guaranteed under Article 20 of the Constitution to the Ahmadi citizens of Pakistan.
(c)
The Ordinance is vague and uncertain and also oppressive.
(d)
That the word 'law' used in phrase 'subject to law' in Article 20 means positive law and not Islamic Law.
(e)
The phrase 'glory of Islam' as used in Article 19 of the Constitution cannot be availed in respect of the rights conferred in Article 20.
(f)
Use of a badge of 'Kalima' and saying 'Azan' are not covered by the Ordinance.
(g)
The impugned orders issued under Section 144, Cr. P. C., violate the appellants' fundamental rights about religion and are, therefore, violative of Article 20 of the Constitution.

Before proceeding with the contentions as raised, it appears necessary to say, if the general law applied so far, gives everyone a right to the use of any word, name and epithet etc., or, do there exist any recognised restrictions already? It will be appreciated that some of the epithets, descriptions and titles etc., as given in Section 298-B have been used by Quran for specific personages (See 33:32, 33:54 and 9:100) while others undoubtedly and rather admittedly being used by the Muslims, for those mentioned there, exclusively, for the last about 1400 years. These epithets carry special meaning, are part of the Muslim belief and used for reverence. Any person using them for others, in the same manner, may be conveying impression to others that they are concerned with Islam when the fact may be otherwise.

It is to be noted that it is not only in Pakistan but throughout the World, that laws protect the use of words and phrases which have special connotations or meaning and which if used for other may amount to deceiving or misleading the people. The English Company Law lays down that a name must not be misleading or suggest a connection with the Crown, a Government Department, or a municipality, and only in exceptional circumstances will names be allowed which include "Imperial", "Commonwealth", "National", or "International". The use of words "Cooperative" and "Building Society" is also forbidden. The most important is the rule that the name will be refused registration if it is too like the name of an existing company. These provisions have been strictly applied and were never challenged in a Court of law or the Parliament.

Section 20 of the Indian Company Law also lays down that no company shall be registered by a name which, in the opinion of the Central Government, is undesirable and that a name which is identical with, or too nearly resembles, the name by which a company in existence has been previously registered, will be deemed to be undesirable by the Central Government. The Indian Constitution has similar Fundamental Rights as ours but we have not seen a single decision of any court there, declaring the rest riction violative of these rights.

A law for protection of trade and merchandise marks exists, practically, in every legal system of the world to protect the trade names and marks etc. with the result that no registered trade name or mark of one firm or company can be used by any other concern and a violation thereof, not only entitles the owner of the trade name or mark to receive damages from the violator but it is a criminal offence also.

Here we may refer to English Law. It was held in J. Bollinger V. Costa Brava Wine Company Ltd. [(1959) 3 W.L.R. 966] that "An injunction could be obtained to restrain the defendant from continuing a practice that was calculated to deceive, although there was no proof of an intent to deceive."

The Chapter X of the Trade and Merchandise Marks Act, 1958, of India provides penalties for falsifying and falsely applying trade marks or for applying false trade marks, trade descriptions, etc., or for selling goods to which a false trade mark or false description is applied.

The Chapter XVIII of the Indian and Pakistan Penal Codes, contains offences relating to documents and to trade and property marks. Section 481 says "Whoever, marks any moveable property or goods, or any package or other receptacle containing movable property or goods, or uses any case, package or other receptacle having any trade mark thereon, in a manner reasonably calculated to cause it to be believed that the property or goods so marked or any property or goods contained in any receptacle so marked, belong to a person to whom they do not belong is said to use a false property mark. The offence is a fraud and is punishable with imprisonment of either description for a term which may extend to one year, or with fine or with both.

Laws similar to above have been in force in Pakistan, and no one challenged them on any ground. We may here refer to section 69 of the Trade Marks Act, 1940, which was applicable to the sub-continent of India. The amended section as now applicable in Pakistan is as under:

"69. Restraint of use of Royal Arms and State emblems: If a person, without due authority, uses in connection with any trade, business, calling or profession :-

(a)
The Royal Arms or Government Arms (or arms to closely resembling the same as to be calculated to deceive) in such manner as to be calculated to lead to the belief that he is duly authorised so to use the Royal Arms or Government Arms, or
(b)
name, title and semblance of Quaid-i-Azam Mohammad Ali Jinnah and any variations thereof or any device, emblem or title in such manner as to be calculated to lead to the belief that he is employed by, or supplies goods to, or is connected with, His Majesty's Government or the Federal Government or any Provincial Government or any department of any such Government, or
(c)
the emblem, the official seal and the name or any abbreviation of the name of the United Nations or any subsidiary body set up by the United Nations or of the World Health Organisation in such manner as is to be calculated to lead to the belief that he is duly authorised by the Secretary General in the case of the United Nations or by the Director-General of the World Health Organization in the case of that Organization to use that emblem, seal or name.

he may, at the suit of any person who is authorised to use such Arms or such device, emblem or title or of the Registrar, be restrained by injunction from continuing so to use the same:

Provided that nothing in this section shall be construed as affecting the right, if any, of the proprietor of a trade mark containing any such Arms, device, emblem or title to continue to use such trade mark."

It is thus clear that intentionally using trade names, trade marks, property marks or descriptions of others in order to make believe others that they belong to the user thereof amounts to an offence and not only the perpetrator can be imprisoned and fined but damages can be recovered but damages can be recovered and injunction to restrain him issued. This is true of goods of even very small value. For example, the Coca Cola Company will not permit anyone to sell, even a few ounces of his own product in his own bottles or other receptacles, marked Coca Cola, even though its price may be a few cents. Further, it is a criminal offence carrying sentences of imprisonment and also fine. The principles involved are: do not deceive and do not violate the property rights of others.

Generally speaking, the people who are deceiving others with falsified names are being discouraged, even though the loss may be in terms of pennies. In our case, a law has been made to protect even the title and semblance of Quaid-i-Azam, without any challenge from any quarter. However, in this Ideological State, the appellants, who are non-Muslims, want to pass off their faith as Islam? It must be appreciated that in this part of the world, faith is still the most precious thing to a Muslimbeliever, and he will not tolerate a government which is not prepared to save him of such deceptions or forgeries.

The appellants, on the other hand, insist not only for a licence to pass off their faith as Islam but they also want to attach the exclusive epithets and descriptions etc., of the very revered Muslim personages to those heretic non- Muslims, who are considered not even a patch on them. In fact the Muslim treat it as defiling and desecration of those personages. Thus the insistence on the part of the appellants and their community, to use the prohibited epithets and the 'Shaa'ire Islam' leave no manner of doubt even to a common man, that the appellants want to do so intentionally and it may, in that case amount to not only defiling those pious personages but deceiving others. And, if a religious community insists on deception as its fundamental right and wants assistance of courts in doing the same, then God help it. It has been held by the United States Supreme Court in Cantwell Vs. Connecticut (310 U.S. 296 at 306) that "the cloak of religion or religious belief does not protect anybody in committing fraud upon the public".

Again, if the appellants or their community have no designs to deceive, why do not they coin their own epithets etc? Do not they realise that relying on the 'Shaairs' and other exclusive signs, marks and practices of other religions will betray the hollowness of their own religion. It may mean in that even that their new religion cannot progress or expand on its own strength, worth and merit but has to rely on deception? After all there are many other religions in the world and none of them ever usurped the epithets etc., of Muslims or others. Rather, they profess and present their own beliefs proudly and eulogise their heroes their own way. It must, however, be mentioned here that there is no law in Pakistan which forbids Ahmadis to coin their own epithets etc. and use them exclusively and there is no other restriction of any sort, whatever, against their religion.

It was argued that the finding of the Federal Shariat Court that the Ordinance is not contrary to Quran and Sunnah, is of no consequence, so far as this Court is concerned.

The contention, however, has no merit. The Ahmadis have been declared non-Muslims by Article 260(3)(b) of the Constitution. This fact has further been affirmed by the Federal Shariat Court of Pakistan, in Mujibur Rehman vs. Federal Government of Pakistan and another (PLD 1985 FSC 8), for the reason that the Ahmadis do not believe in the finality of prophethood of Muhammad (Peace be upon him); they falsify a clear and general verse of Holy Quran by resort to its 'Taweel'; and import into Islam, heretic concepts like shadowism, incarnation and transmigration.

They were therefore, asked to restrain themselves from directly or indirectly posing as Muslims or claiming legal rights of Muslims.

The Federal Shariat Court further held that the word "Sahabi" and "ahle-bait" are used by Muslims for companions and members of the family of Holy Prophet respectively, all of whom were the best Muslims. The Court observed that use of such epithets, which are exclusive for companions of Prophet, his wives and members of his family, by Quadianis in respect of the wives, members of the family, companions and successors of Mirza Ghulam Ahmad, amounts to defiling them and may deceive people that the bearers of such epithets are good Muslims. It was further stated that calling of 'Azan' and naming place of worship as 'Masjid', is considered a sure sign of the person calling 'Azan' or of persons congregating or praying in the mosque as being Muslims. It was thus held that the provisions of the Ordinance banning use of these epithets, expressions and preaching of religion, by the Ahmadis and the reiteration in the Ordinance that the Ahmadis cannot call themselves or pose to be Muslims in any manner directly or indirectly, is in implementation of the constitutional objective.

As regards, 'Shaa'ir of Islam' (distinctive characteristics), the Court held that Islamic Sharia does not allow a non-Muslim to adopt them and if an Islamic State inspite of its being in power, allows a non-Muslim to adopt them (without embracing Islam), it will be its failure to discharge its duties. An Islamic state, like a secular state, thus has the power to legislate, to prevent non- Muslims from adopting Shaa'ir-e-Islam, to propagate their own beliefs. As said above, such restriction will be meant to prevent unscrupulous and fraudulent non- Muslim from using the effective and attractive features of Islam in order to attract other non-Muslims not to Islam but to their own heretic fold. It was further held that claim could not be allowed to be pressed on the basis of the Fundamental Rights.

It is to be noted that Mujibur Rehman and others had challenged the above order of the Federal Shariat Court in the Shariat Appellate Bench of the Supreme Court (See: PLD 1988 S.C. (Shariat Appellate Bench) 167), under Article 203F of the Constitution but withdrew it later for the reasons best known to the appellants. This Court in that appeal held as under:

"Judgment of the Federal Shariat Court shall rule the field".

The present appeal has been filed and is being heard on the general side, under Art.185 of the Constitution.

The Chapter 3A of the Constitution was inducted in the Constitution on 26th May, 1980. It contains Articles 203A to Article 203J. The Article 203A of the Constitution lays down that the provisions of Chapter 3A shall have effect notwithstanding anything contained in the Constitution. Further Article 203G provides that "Save as provided in Article 203F, no court or tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court".

These provisions when read together, would mean that a finding of the Federal Shariat Court, if the same is either not challenged in the Shariat Appellate Bench of the Supreme Court or challenged but maintained would be binding even on the Supreme Court.

Consequently, the above given findings of the Federal Shariat Court cannot be ignored by this Court.

The next point needing consideration is whether Ordinance XX of 1984, expressly and in no uncertain terms, is total denial of religious freedom guaranteed under Article 20 of the Constitution to the Ahmadi citizens of Pakistan? In order to appreciate further the contention it is necessary to know the relevant law and the facts which mean to have denied the guaranteed religious freedom to the appellants' sect.

Section 298B which is relevant to this case, reads as under:-

"298B:- Misuse of epithets, descriptions and titles etc., reserved for certain personages or places.-(i) Any person of Quadiani group or the Lahori group (who call themselves "Ahmadis or by any other name) who by words, either spoken or written, or by visible representation,

(a)
refers to or addresses, any person, other than a Caliph or companion of the Holy Prophet Muhammad (peace be upon him), as "Amirul Mumineen", 'Khalifa-tul-Muslimeen', 'Sahaabi' or 'Razi Allah Anho';
(b)
refers to, or addresses, any person other than a wife of the Holy Prophet Muhammad (peace be upon him), as Ummul Mumineen';
(c)
refers to, or addresses, any person, other than a member of the family (Ahle-bait) of the Holy Prophet Muhammaed (peace be upon him), as Ahle-bait; or
(d)
refers to, or names, or calls his place of worship as 'Masjid';

shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

2. Any person of the Quadiani or Lahori Group (who call themselves 'Ahmadis or by any other name) who by words either spoken or written, or by visible representation, refers to the mode or form of call to the prayers followed by his faith as 'Azan', or recites 'Azan' as used by Muslims, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine".

Section 298B reads as under:

"Person of Quadiani group, etc. calling himself a Muslim or preaching or or propagating his faith.- Any person of Quadiani group or the Lahori group (who call themselves 'Ahmadis' or by any other name), who, directly or indirectly, poses himself a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith, by words either spoken or written, or by visible representations, or in any manner whatsoever outrages the religious feelings of Muslims, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine".

The contents of the Ordinance XX of 1984 have been reproduced above. They prohibit the community of the appellants to use certain epithets, descriptions and titles etc., mentioned therein. It may be mentioned that Mr. Fakhruddin G. Ebrahim, the learned counsel, did not challenge the validity of sub-section (a) of Section 298. The orders of the Home Secretary, the District Magistrate and the Resident Magistrate mentioned in the beginning of the petition banned their centenary celebrations, in the Province of Punjab, prohibiting them from the activities reproduced in Para 3 above and asked them to remove ceremonial gates, banners and illuminations and further ensure that no further writings will be done on the walls. The purpose of the order has also been spelt out in the last direction to say, that no other activity which may directly or indirectly incite and injure the feelings of Muslims, shall be undertaken. The above restrictions, clearly mean such activities which might have been performed in the public or in public view and not those to be performed in private. The actions had been challenged in the High Court through Writ Petitions, pleading violation of fundamental rights. The facts which were given by the appellants themselves and on which the orders were passed, will, therefore, be considered as undisputed.

Article 20 provides as hereunder:-

"Freedom to profess religion and to manage religious institutions:- Subject to law, public order and morality :-

(a)
every citizen shall have the right to profess, practise and propagate his religion; and
(b)
every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions."

The fundamental right, relevant hence, is the 'freedom to profess religion' but it has been made 'subject to law, public order and morality'. The courts of other countries, which have similar fundamental rights, have held that this right embraces two concepts: freedom to believe and freedom to act. Some of them held the former to be absolute but others said that, that too was subject to law etc. However, all are agreed that the latter, in the nature of things, cannot be absolute. According to them, conduct remains subject to regulation for the protection of the society. So the freedom to act must have appropriate definition to preserve the enforcement of that protection. The phrase 'subject to law', on the other hand, does neither invest the legislature with unlimited power to unduly restrict or take away the Fundamental Rights guaranteed in the Constitution, nor can they be completely ignored or by-passed as non-existent. A balance has thus to be struck between the two, by resorting to a reasonable interpretation, keeping in view the peculiar circumstances of each case (See Jesse Cantwell etc. Vs. State of Connecticut, (310 US 296) and Tikamdas and others Vs. Dividional Evacuee Trust Committee, Karachi, PLD 1968 Kar 703 (F.B) ).

The Supreme Court of America in the case of Reynolds Vs. United States, (98 US 145) held that "Congress was deprived of all legislatible power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order..... Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices."

After taking the above view, the Supreme Court felt justified to ban polygamy, as it was being practised by Mormons sect on the ground that it was a duty imposed on them by their religion and was not a religious belief or opinion. It must be noted here that the observations in the last part of the above paragraph are peculiar to America where the people and not Allah are the sovereign.

The Supreme Court of India, in the Commissioner Hindu Religious Endowments, Madras V. Sri Lakshmindra etc. (A.I.R. 1954 S.C. 282 at p.291) approved the view similar to the above, and as taken by Latham CJ in the case from Australia, to say that:

"The provision for protection of religion was not an absolute protection to be interpreted and applied independently of other provisions of the Constitution. These privileges must be reconciled with the right of the State to employ the sovereign power to ensure peace, security and orderly living without which constitutional guarantee of civil liberty would be a mockery".

It has been observed at page 127 as under:

"In the United States the problems created by this provision have been solved in large measure by holding that the provision for the protection of religion is not an absolute, to be interpreted and applied independently of other provisions of the Constitution. The Supreme Court said in Jones V. Opelika (1942) 316 H.S. 584 at p.593, with reference to the constitutional guarantees of freedom of speech, freedom of press and freedom of religion: "They are not absolutes to be exercised independently of other cherished privileges, protected by the same organic instrument." It was held that these privileges must be reconciled with the right of a State to employ the sovereign power to ensure orderly living "without which constitutional guarantees of civil liberties would be a mockery."

It has been further observed at page 130 as follows:-

"The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind: provided, that the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State."

Again at page 131, it has been observed as hereunder:

"John Stuart Mill in his Essay on Liberty critically examines the idea of liberty, and his discussion of the subject is widely accepted as a weighty exposition of principle. The author had to make the distinction which is often made in words between liberty and licence, but which it is sometimes very difficult to apply in practice. He recognised that liberty did not mean the licence of individuals to do just what they pleased, because such liberty would mean the absence of law and of order, and ultimately the destruction of liberty. He expressed his opinion as to the limits of liberty when he said: "The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their member, is self- protection."

At the same page it has been further observed that:-

"It is consistent with the maintenance of religious liberty for the State to restrain actions and courses of conduct which are inconsistent with the maintenance of civil government or prejudicial to the continued existence of the community."

The above observations were made while interpreting Section 116 of the Constitution which reads as follows:-

"The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth."

At page 155 of the aforesaid case, the following observations are relevant:-

"The constitutional provision does not protect unsocial actions or actions subversive of the community itself. Consequently the liberty and freedom of religion guaranteed and protected by the Constitution is subject to limitations which it is the function and the duty of the courts of law to expound. And those limitations are such as are reasonably necessary for the protection of the community and in the interests of social order."

It may therefore, be necessary to know, what is religion, the freedom of which restricts the right of the Governments to legislate and take action. Scholars give different origins of the word. Religion is a complex of doctrines and practices and institutions. It is a statement of belief in God, in a world of spirits and a world or worlds that lie beyond the one in which we live. In its more colloquial sense, a religion is spoken of as a religion, e.g. Christianity or Islam, the religion of Jews or Catholics etc. In Davies Vs. Beason [1890 (133) US 333], the American Supreme Court defined it as under:

"The term 'religion' has reference to one's views of his relation to his creator and the obligations they impose of reverence for His Being and character and of obedience to His will. It is often confounded with cultus or form of worship of a particular sect, but is distinguishable from the latter."

The term is not expressly defined in the Constitution of Pakistan as such but its meaning may be gathered from the definitions of 'Muslim' and 'non-Muslim', in its Article 260(3) (a) and (b), which are as under:-

"260(3):- In the Constitution and all enactments and other legal instruments, unless there is anything repugnant in the subject or context:-

(a)
"Muslim" means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified Prophethood of Muhammad (peace be upon him), the last of prophets and does not believe in, or recognise as a prophet or religious reformer, any person who claimed or claims to be a prophet, in the sense of the word or any description whatsoever, after Muhammad (peace be upon him); and
(b)
"non-Muslim" means a person who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh, Budhist or Parsi community, a person of the Quadiani Group or Lahori Group (who call themselves 'Ahmadis' or by any other name) or a Bahai, and a person belonging to any of the Scheduled Castes".

There is no definition of the term 'religion', in the Constitutions of India or America or Australia either. However, the Indian Supreme Court, in the case of Commissioner H.R.E. vs Lakshmindra Swamiar (AIR 1954 S.C.282), interpreted the term in the following manner:-

"Religion is a matter of faith with individuals or communities and is not necessarily theistic. There are well known religions in India like Budhism and Jainism which do not believe in God. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it will not be correct to say that religion is nothing else but a doctrine of belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and mode of worship which are regarded as integral parts of the religion, and these forms and observance might even extend to matters of food and dress".

The Supreme Court went on to say, in para 19 of the judgment that:

"In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of Hindu prescribe that offering of food be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain period of the year or that there should be daily recital of the sacred texts or oblations to the sacred fire, all these would be regarded as parts of the religion and mere fact that they are expenditure of money......should not make them secular....."

The Court, after noting that the American and Australian Courts have declared in unrestricted terms, without any limitation whatsoever, the freedom of religion, observed that:-

"the language of Articles 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what matters come within the purview of religion and what not. As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to restrictions which the Constitution itself has laid down".

The Court then did go into the question whether certain matters appertained to religion and concluded by saying that:

"these are certainly not matters of religion and the objection raised with regard to validity of these provisions seem to be altogether baseless."

The same Court in Durghah Committee V. Hussain Ali (A.I.R. 1961 S.C. 1402) in para 33, Gajendragadkar, J. struck a note of caution and observed as under:

"Whilst we are dealing with this point it may not be out of place to strike a note of caution and observe that in order that the practice in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; other-wise even secular practices which are not an essential and integral part of religion are apt to be clothed with a religious form and make a claim for being treated as religious practices. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretion to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection may have to be carefully scrutinised: in other words, the protection must be confined to such religious practices as are an essential and integral part of it and no other."

The same Court in Jagdishwaranand V. Police Commissioner, Calcutta (AIR 1984 S.C. 51) in para 10, held as follows:-

"Courts have the power to determine whether a particular rite or observance is regarded as essential by the tenets of a particular religion".

It has been seen above, in the judgment of foreign secular courts that though religious practices are protected by the term 'freedom of religion' yet only such practices are so covered as are integral and essential part of the religion. It is further held that it is for the courts to determine whether a particular practice, constitutes essential and integral part of the religion or not? In that view of the matter, these practices have to be stated and proved so, from the authentic sources, of the religion, to the satisfaction of the court.

The appellants, therefore, had to first enumerate the practices they intended to perform at the centenary celebrations and then show that they were essential and integral part of their religion, before the court could declare that they, as essential and integral part, were unlawfully denied by the impugned law or the executive orders? The appellants, however, have not explained how the epithets etc., and the various planned ceremonies are essential part of their religion and that they have to be performed only in public or in the public views on the roads and streets or at the public places.

It will also be noted that if the impugned law is a valid place of legislation, and the respondents had taken the impugned actions, in the interest of law and order, then unless it can be shown that the same were taken malafide or without factual justification, the question of denial of fundamental rights may not arise. The law on the point has been well settled in various jurisdictions and it may be useful to cite them.

Latham C. J. in Jehovah's Witnesses case, Adelaide Vs. Commonwealth, referred to above, while dealing with the provisions of Section 116 of the Australian Constitution, which inter alia forbids the Commonwealth to prohibit "the free exercise of any religion" made the following observations:-

(1)
Section 116 protects the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities (p.124) although it is true that in determining what is religious and what is not religious the current application of world religion must necessarily be taken into account.
(2)
Section 116 protects practices as well as beliefs.(p.124)
(3)
As to free exercise of religion: the word 'free' does not mean license. The concept of freedom can only be evaluated in a particular context. For example free speech does not mean the right to create a panic by calling out "fire" in a crowded theatre. Likewise as various American cases show, the free exercise of religion does not empower individuals because of their religious beliefs to break the law of the country.
(4)
The High Court is arbiter of the occasion when a legislative provision unduly infringes religious freedom. This makes it possible to accord a real measure of practical protection to religion without involving the community in anarchy.

Consequently, the court held that the doctrine expressed by Jehovah's Witnesses as to the non cooperation with the Commonwealth in terms of military obligation was prejudicial to the defence of the community and Section 116 did not give immunity to it. So the rule laid down there is that a law imposing civic duties could not be characterised as a law infringing religious freedom.

Justice Hughes in Willis Cox V. New Hampshire (1941 (312) US 569) also enlightened the same subject to say:

"A statute requiring persons using the public streets for a parade or procession to procure a special license therefore from the local authorities, does not consitute an unconstitutional interference with religious worship or the practice of religion, as applied to a group marching along a sidewalk in single file carrying signs and playcards advertising their religious beliefs."

We have referred to the above view from such countries, which claim to be the secular and liberal, and not religious or fundamentalists. The same principles were applied by the Indian Supreme Court in Muhammad Hanif Qureshi and others Vs. State of Bihar (AIR 1958 S.C. 731) to hold that certain laws banning slaughter of certain animals, did not violate the fundamental rights of Muslims under Article 25(1), as there was no material to substantiate the claim that the sacrifice of a cow on Bakr-Id-Day, was enjoined or sanctioned by Islam, to exhibit a Mussalman's belief and idea.

The same Court in Acharya Jugdishwaranand Avadhutta etc. Vs. Commissioner of Police, Calcutta, (AIR 1984 S.C.51) held as follows:

"Even conceding that tandava dance has been prescribed as a religious right for every follower of Ananda Marg it does not follow as a necessary corollary that tandava dance to be performed in the public is a matter of religious rite. Consequently, the claim that the petitioner has a fundamental right within the meaning of Article 25 or 26 to perform tandava dance in public streets and public places is liable to be rejected."

The American Court held in the following cases that there was no violation of constitutional guarantee of freedom of exercise of religion.

Mr. S. Sharifuddin Pirzada in his book "Fundamental Rights and Constitutional Remedies in Pakistan" 1966 Edition) at pp.313-314 & 317 has observed as follows:-

"(i)
in Hamilton Vs. Board of Regents of University of California, (1934) 293 US 245, where students appealed to the Supreme Court that the act of the university to make a regulation for compulsory military training, was contrary to their religious belief, the court rejected the contention, holding that the "Government owes a duty to the people within its jurisdiction to preserve itself in adequate strength to maintain peace and order and assure the enforcement of law. And every citizen owes the reciprocal duty, according to his capacity, to support and defend the Goveernment against all enemies."
(ii)
The plea of fundamental right was rejected in Commonwealth Vs. Plaisted (1989) 148 Mass 375, by the Massachusetts Supreme Court in a case where law prohibits the use of streets for religious meetings, or the beating of drums though it is a part of religious ceremony of such organisation as the salvation army.
(iii)
Where the statute requires a parent to provide medical treatment for a child suffering from disease even if not in accordance with religious belief of the parents.
(iv)
Freedom of religion does not necessarily imply absolute equality of treatment, and in fact regard must be had to the special position of Church of England. ("The United Kingdom" by G.W. Keeton and D. Lloyd, pp.67-68).

The above views, as they are prevalent, in the above jurisdiction, do go to show that freedom of religion would not be allowed to interfere with the law and order or public peace and tranquility. It is based on the principle that the state will not permit anyone to violate or take away the fundamental rights of others, in the enjoyment of his own rights and that no one can be allowed to insult, damage or defile the religion of any other class or outrage their religious feelings, so as to give rise to law and order situation. So whenever or wherever the state has reasons to believe, that the peace and order will be disturbed or the religious feelings of others may be injured, so as to create law and order situation, it may take such minimum preventive measures as will ensure law and order.

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