Rev. Stainislaus: Rev. Stainislaus: State Of Orissa vs State Of M. P. : State Of M. P. : Yulitha Hyde

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1977 Supreme(SC) 21

SUPREME COURT OF INDIA
A.N. RAY, C.J.I., M.H. BEG, R.S. SARKARIA, P.N. SHINGHAL AND JASWANT SINGH, JJ.
Rev. Stainislaus, Appellant
Versus
State of M.P. and others, Respondents.
(1) In Civil Appeals Nos. 1439 and 1511 of 1974 :
(2) In Criminal Appeal No. 255 of 1974 :
State of Orissa and others, Appellants
Versus
Mrs. Yulitha Hyde and others etc., etc., Respondents.
Rev. Stainislaus, Appellant
Versus
State of M.P., Respondent.
Civil Appeals Nos. 1489 and 1511 of 1974; Criminal Appeal No. 255 of 1974 and Civil Appeals Nos. 344-346 of 1976,
D/- 17-1-1977.
Advocates appeared
Mr. Frank Anthony, Sr. Adv. (in C. A. No. 1489, Crl. A. No. 255/74 and C. A. No. 346/76); Mr. Soli T Sorabjee, Sr. Adv. (In C. A. No. 1511, Crl. A. No. 255/74), M/s. J. B. Dadachanji, K. J. John, O. C. Mathur and Ravinder Narain Advocates, for Appellant in C. As. 1489 and 1511/74 and Cr. A. No. 255/74 and R. R. 1 and 2 in Case 346/76.
Mr. Gobind Das, Sr. Advocate (In C. As. No. 344-346/76) Mr. B. Parthasarthi, Advocate, for Appellants in C. As. Nos. 344-346/76.
Mr. Ram Panjwani, Dy A. G. Madhya Pradesh and Mr. H. S. Parihar, for Respondents in C. As. No. 1511/74 and Crl. A. No. 255/74.
Mr. Soli J. Sorabjee, Sr. Advocate, Mr. B. P. Maheshwari and Mr. Suresh Sethi, Advocates, for Respondent 3 in C. A. No. 346/76.
Mr. Brijbans Kishore, Sr. Advocate and Mr. B. R. Sabharwal, Advocate, for Respondents in C. A. No. 345/76.
Mr. Gobind Das, Sr. Advocate and Mr. Raj Kumar Mehta, Advocate, for the Intervener (State of Orissa), in C. A. No. 1489/74.

Advocates:
B.P.MAHESHVARI, B.R.SABHARWAL, BRIJBANS KISHORE, D.PARTHASARATHY, FRANK ANTHONY, GOBIND DAS, H.S.PARIHAR, J.B.DADACHAN, K.J.JOHN, O.C.MATHUR, R.K.MEHTA, RAM PANJWANI, RAVINDER NARAYAN, SOLI J.SORABJEE, SOLI J.SORABJI, Suresh Sethi

Headnote:Constitution of India-Art. 25-Word-“Propagate” in the article does not grant the right to convert another person to one’s own religion but to transmit or spread one’s own religion by exposition of its tenets-Freedom guaranteed is “freedom of conscience” to every citizen and merely to the followers of one particular religion and, that, in term postulates that there is no fundamental right to convert another person as one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the “freedom of conscience” guaranteed to all the citizens of the country alike-The word “Propagate” has a different meaning than that used in biological sense.
(Paras 17 & 19)
Constitution of India-Seventh Schedule-Entry I List II Arts 25 & 26-State Acts prohibiting conversion to one’s religion by “force, allurement and fraudulent” means-Act also penalizing such offenders-Acts come under entry I List II as one under “public order”.

Judgment

RAY, C.J.I. :- These appeals were heard together because they raise common questions of law relating to the interpretation of the Constitution.

2. Civil Appeals Nos. 1489 and 1511 of 1974 and Criminal Appeal No. 255 of 1974 are directed against a judgment of the Madhya Pradesh High Court dated 23rd of April, 1974. We shall refer to these as the Madhya Pradesh cases. Civil Appeals Nos. 344-346 of 1976 relate to a judgment of the Orissa High Court dated 24th October, 1972. We shall refer to these appeals as the Orissa cases.

3. The controversy in the Madhya Pradesh cases relates to the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, hereinafter referred to as the Madhya Pradesh Act. The controversy in the Orissa cases arises out of the Orissa Freedom of Religion Act, 1967, hereinafter referred to as the Orissa Act.

4. The provisions of the two Acts in so far as they relate to prohibition of forcible conversion and punishment therefore, are similar and the questions which have been raised before us are common to both of them. It will, therefore, be enough for the purpose of appreciating the controversy, to make a somewhat detailed mention of the facts of the Madhya Pradesh case.

5. The Sub-Divisional Magistrate of Baloda-Bazar sanctioned the prosecution of Rev. Stainislaus for the commission of offences under Sections 3, 4 and 5 (2) of the Madhya Pradesh Act. When the case came up before Magistrate, First Class, Baloda-Bazar, the appellant Rev. Stainislaus raised a preliminary objection that the State Legislature did not have the necessary legislative competence and the Madhya Pradesh Act was ultra vires the Constitution as it did not fall within the purview of Entry 1 of List II and Entry 1 of List III of the Seventh Schedule. The appellants contention was that it was covered by Entry 97 of List I so that Parliament alone had the power to make the law and not the State Legislature. An objection was also raised that the provisions of Section 3, 4 and 5 (2) of the Act contravened Articles 25 of the Constitution and were void. The Magistrate took the view that there was no force in the objection and did not refer the case to the High Court under Section 432 of the Code of Criminal Procedure, 1898.

6. The appellant applied to the Additional Sessions Judge for a revision of the Magistrates order refusing to make a reference to the High Court. The Additional Sessions Judge also took the view that no question of constitutional importance arose in the case and he did not think it necessary to make a reference to the High Court.

7. The appellant thereupon applied to the High Court for revision under section 439 of the Code of Criminal Procedure and he also filed a petition under Articles 226 and 227 of the Constitution.

8. The High Court heard both the revision and the writ petition together. The appellant raised the following three questions in the High Court :-

(i) that Sections 3, 4, 5 (2) and 6 of the M. P. Dharma Swatantrya Adhiniyam 1968 are violative of the petitioners fundamental rights guaranteed by Article 25 (1) of the Constitution of India;

(ii) that in exercise of powers conferred by Entry No. 1 of List II, read with Entry No. 1 of List III of the Seventh Schedule the Madhya Pradesh Legislature in the name of public order could not have enacted the said legislation. But the matter would fall within the scope of Entry No. 97 of List I of the Seventh Schedule, which confers residuary powers on Parliament to legislate in respect of any matters not covered by List I, List II or List III. Therefore, it is contended that Parliament alone had the power to legislate on this subject and the legislation enacted by the State Legislature is ultra vires the powers of the State Legislature;

(iii) that Section 5 (1) and Section 5 (2) of the M. P. Dharma Swatantrya Adhiniyam 1968 amount to testimonial compulsion and, therefore, the said provisions are violative of Article 20 (3) of the Constitution of India.

9. The High Court examined the