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Madhya Pradesh High Court
P. K. TARE,U. N. BHACHAWAT
Rev. Stainislaus - Appellant
Versus
State of M.P. - Respondent
Decided On : 04/23/1974
What Article 25 of the constitution guarantees is freedom of conscience and the right to profess practice and propagate religion. This fundamental right is not restricted to the .Indian citizen alone, cut to every person living within the territory of India. Regarding freedom of religion it is to be noted that the freedom of religion is not a monopoly of a single individual; but the freedom is to be enjoyed by a person commensurate with similar freedom to all other individuals.
The freedom of religion has been guaranteed subject to four things, namely, public order, morality, health and the other provisions of this Part. As liberty cannot be construed to be a licence so also freedom of religion cannot be construed to be the right of an individual to encroach upon similar freedom of other individuals by questionable methods. It is only from this point of view that the State legislature has prohibited conversion by practicing force, fraud or by offer of an allurement. [Para 10]
Exercise of the fundamental right of religious freedom is subject to public order, morality and health. It necessarily implies that the word 'public' has to be read with the other two phrases as well. Therefore, the restrictions will be public order, public morality and public health. AIR 1972 SC 1585, relied on. [Para 16]
(2) Dharma Swatantrya Adhiniyam, 1968 (MP) - Ss. 3, 4 and 5 - provisions are not ultra vires Article 25 of the Constitution - is within the competence of State Legislative.
What is penalised by the Act is conversion by force, fraud or by allurement. The other element is that every person has a right to profess his own religion and to act according to it. Any interference with that right of the other person by resorting to conversion by force, fraud or allurement cannot, be said to contravene Article 25 (1) of the Constitution of India, as the Article guarantees religious freedom subject to public order, public morality and public health. As such, we do not find that the provisions of sections 3, 4 and 5 of the M.P. Dharma Swatantrya Adhiniyam 1968, are violative of Article 25 (1) of the Constitution of India. On the other hand it guarantees that religious freedom to one and all including those who might be amenable to conversion by force, fraud or-allurement. [Para 16]
It is clear that the phrase 'public order' ought not to be confused with 'law and order' or 'public safety'. These three concepts are altogether different and they convey a different connotation and as the phrase 'public order' conveys a wider connotation, the subject• matter of the Madhya Pradesh Dharma Swatantrya Adhiniyam 1968 fans within the scope of Entry No.1 of List II of the Seventh Schedule relating to the State List regarding public order. AIR 1973 Orissa 116 dissented from. [Para 25]
(3) Dharma Swatantrya Adhiniyam, 1968 (MP) - S. 5 - is not violative of Article 20 (3) of the Constitution.
What section 5 of the Act and Form-A provide for is mere intimation of the fact of conversion and nothing more. As such the said provision cannot be said to be violative or Article 20 (3) of the Constitution of India. [Para 29]
(4) Criminal P.C., 1898 - Ss. 432 and 439 - case involving points of Constitutional Law -Lower Courts refusing to refer the question to High Court - High Court may interfere in revision. [Para 30]
TARE, C.J. : - This order shall also govern the disposal of Criminal Revision No. 159 of 1971 (Rev. Stainislaus v. The State of M. P.).
2. On a report made by the Circle Inspector, Balodabazar, dated 9-3-1970, and on a complaint made by him on 23-5-1970, the Sub-divisional Magistrate, Balodabazar, sanctioned prosecution of the petitioner for the alleged offences under Sections 3, 4, 5 (2) and Section 6 of the Madhya Pradesh Dharma Swatantrya Adhiniyam, 1968 (No. 27 of 1968), by Order, dated 23-10-1970, in exercise of the powers delegated to him by Section 7 of the said Act. Accordingly, an offence was registered and Criminal Case No. 1195 of 1970 was initiated in the Court of the Magistrate, Ist Class, Balodabazar.
3. The petitioner raised a preliminary objection as to the tenability of the prosecution contending that the Act was ultra vires the powers of the State legislature, as it did not fall within the scope of Entry No. I to List II and Entry No. 1 to List III of the Seventh Schedule. But, in fact it falls within Entry No. 97 of List I of the Seventh Schedule and as such, the Parliament alone had the power to enact legislation on the subject and the State legislature in the name of public order could not have enacted such a legislation. The other contention raised was that the provisions of Sections 3, 4 and 5 (2) of the Act contravene Article 25 of the Constitution of India guaranteeing freedom of religion, the Act is void as being in violation of the petitioner's fundamental rights. On these two grounds the prosecution was said to be untenable.
4. The learned Magistrate, by order dated 28-10-1970, observed that the objections raised constituted a constitutional question, which the High Court alone was competent to adjudicate upon. In spite of that observation, the learned Magistrate refused to refer the case for the opinion of this Court, as required by Section 432 of the Code of Criminal Procedure. Against the order of the trial Magistrate the petitioner filed a revision before the Additional Sessions Judge, which was registered as Criminal Revision No. 139 of 1970. By order, dated 15-2-1971, the learned Additional Sessions Judge held that no question of constitutional importance arose and hence he refused to refer the case for the opinion of this Court. Therefore, the petitioner has filed not only a Criminal Revision under Section 439, Criminal Procedure Code, but also a writ petition under Articles 226 and 227 of the Constitution of India. As both these cases involve the same questions, we propose to dispose them of by a common order.
5. In the present cases the petitioner has raised three constitutional questions challenging the vires of the Madhya Pradesh Dharma Swatantrya Adhiniyam, 1968. We propose to discuss them in a serial order as follows :
(i) that Sections 3, 4, 5 (2) and 6 of the M. P. Dharma Swatantrya Adhiniyam, 1968, are violative of the petitioner's 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 the Parliament to legislate in respect of any matters not covered by List I, List II or List III. Therefore, it is contended that the 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.
6. Regarding the first question that the provisions of the Act are violative of the petitioner's fundamental rig
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