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IN THE HIGH COURT OF MADHYA PRADESH
S. C. Sharma and Shailendra Shukla, JJ.
Aarsh Marg Seva Trust & Another v. State of M. P. & Others
Writ Petition No. 8310 of 2019 (PIL) (Indore);
Decided on 1.11.2019
(1) Custom -- religious practice -- abhishek is not an integral and basic tenet of Jain religion -- celibacy is essential and integral. [Paras 36 & 52]
(2) Constitution of India -- Art. 25 (2) (b) -- religious custom and practice -- Art. 25 (2) (b) cannot be interpreted to mean that customs and usages forming essential part of religion are to be overridden. [Para 41]
(3) Constitution of India -- Arts. 25 and 26 (b) -- religious custom and practice -- in a secular polity, matters of deep religious faith and sentiment must not ordinarily be interfered with by Courts -- right to practice one's religion is a fundamental right guaranteed by Part III of Constitution, without reference to whether religion or religious practices are rational or not -- religious practices are Constitutionally protected under Arts. 25 and 26(b) -- Courts normally do not delve into issues of religious practices -- in pluralistic society comprising of people with diverse faiths, beliefs and traditions, to entertain such writ petition challenging religious practices followed by any group, sect or denomination, would cause serious damage to Constitutional and secular fabric of this country. [Para 42]
(4) Constitution of India -- Arts. 25 and 14 -- religious customs and practice -- cannot be solely tested on touchstone of Art. 14 and principles of rationality embedded therein -- Art. 25 specifically provides equal entitlement of every individual to freely practice religion -- equal treatment under Art. 25 is subject to essential beliefs and practices of any religion -- equality in matters of religion must be viewed in context of worshipers of same faith. [Para 43]
(5) Constitution of India -- Art. 26 -- religious denomination -- if there are clear attributes that there exists a sect identifiable as distinct by its beliefs and practices, and has followers -- it would be identified as 'religious denomination'. AIR 1954 SC 282 and AIR 1983 SC 1 followed. [Para 50]
(6) Constitution of India -- Art. 25 -- religious custom and practice -- essential practices test -- would have to be determined by tenets of religion itself -- practices and beliefs considered to be integral by religious community are to be regarded as "essential", and enjoy protection under Art. 25. AIR 1954 SC 388, AIR 1961 SC 1402, AIR 1954 SC 282 and 2018 SCC Online SC 1690 followed. [Para 55]
(7) Custom -- religious practice -- jalabhishek -- practice of performing jalabhishek in Digambar (Terapanth) sect is continuing since time immemorial -- Court has no right to interfere with age old religious practice -- especially when there is no ban on entry of women of any age in temple -- Digambar (Terapanth) sect and Digambar (Beespanth) sect have their independent temples -- they allow women to enter and perform pooja, however, men are allowed to perform jalabhishek after taking bath and wearing dhoti and dupatta -- it is an essential religious practice -- not discrimination -- not violative of Constitutional right guaranteed to women devotees. 1962 (Supp) 2 SCR 496, 2018 SCC Online SC 1690, 1954 SCR 1055 and AIR 1954 SC 388 followed. [Paras 68, 69 & 71]
(8) Court -- religious custom and practice -- Courts are certainly not meant to write religious text -- however, they are under obligation to follow religious text in cases dealing with religious dispute, and to follow old practices prevalent in religion so long as they do not violate Constitutional rights of individual. [Para 70]
(9) Court -- religious custom and practice -- Court is not a theological wizard -- shall be transgressing its role as Constitutional authority by interfering with essential religious practice not at all opposed to public order, morality, health or any other fundamental right. [Para 72]
¼1½ :f<+ & /kkfeZd ÁFkk & vfHk"ksd tSu /keZ dk ewyHkwr rFkk vk/kkjHkwr rRo ugha gS & czãp;Z vfuok;Z rFkk vfHkUu vax gSA ¼iSjk 36 ,oa 52½
¼2½ Hkkjr dk lafo/kku & vuqPNsn 25¼2½¼[k½ & /kkfeZd :f<+ rFkk ÁFkk & vuqPNsn 25¼2½¼[k½ dk fuoZpu bl vFkZ esa ugha fd;k tk ldrk fd /keZ dk vfuok;Z vax xfBr djus okyh :f<+;ksa rFkk ÁFkkvksa ij og v/;kjksgh gks tk,A ¼iSjk 41½
¼3½ Hkkjr dk lafo/kku & vuqPNsn 25 rFkk 26 ¼[k½ & /kkfeZd :f<+ rFkk ÁFkk
& /keZ fujis{k jkT; O;oLFkk esa] fufcM+ /kkfeZd fu"Bk vkSj Hkkouk ds fo"k;ksa esa U;k;ky; dks lkekU;r% gLr{ksi ugha djuk pkfg, & vius /keZ dk ikyu djus dk vf/kdkj] blls fujis{k fd og /keZ ;k /kkfeZd ÁFkk rdZlaxr gS ;k ugha] lafoèkku ds Hkkx 3 }kjk ÁR;kHkwr ewy vf/kdkj gS & /kkfeZd ÁFkk,a vuqPNsn 25 rFkk 26 ¼[k½ ds v/khu lkafo/kkfud lajf{kr gS & /kkfeZd ÁFkkvksa ds Á'uksa ij U;k;ky; lkekU;r% fopkj ugha djrs & fofo/k fu"Bkvksa] fo'oklksa rFkk ijaijkvksa okys yksxksa ds vusdoknh lekt esa] fdlh lewg] iaFk vFkok laÁnk; }kjk ikyu dh tkus okyh ÁFkk,a vk{ksfir djus okyh fjV ;kfpdk xzg.k djus ls bl ns'k ds lkafo/kkfud vkSj /keZ fujis{k rkus&ckus dks xaHkhj uqDlku gksxkA ¼iSjk 42½
¼4½ Hkkjr dk lafo/kku & vuqPNsn 25 rFkk 14 & /kkfeZd :f<+ rFkk ÁFkk & ek= vuqPNsn 14 rFkk mlesa lfUufgr rdZlaxrrk ds fl)karksa dh dlkSVh ij ugha ij[kh tk ldrh & vuqPNsn 25 esa fcuk jksd&Vksd /keZ dk ikyu djus dh ÁR;sd O;fDr dh leku gdnkjh fofuZn"Vr% micaf/kr gS & vuqPNsn 25 ds v/khu leku O;ogkj Hkh èkeZ ds vfuok;Z fo'oklksa rFkk ÁFkkvksa ds v/;/khu gS & /keZ ds fo"k; esa lekurk mlh /keZ ds mikldksa ds lanHkZ esa ns[kh tkuk vko';d gSA ¼iSjk 43½
¼5½ Hkkjr dk lafo/kku & vuqPNsn 26 & /kkfeZd laÁnk; & ;fn ,slh Li"V fo'ks"krk,a gSa fd vius fo'oklksa rFkk ÁFkkvksa ds vk/kkj ij lqfHkUu :i ls igpkus tkus ;ksX; iaFk vfLrRo esa gS] rFkk mlds vuq;k;h gSa & mls ^^/kkfeZd laÁnk;** ds :i esa igpkuk tk,xkA , vkb vkj 1954 ,l lh 282 rFkk , vkb vkj 1983 ,l lh 1 vuqlfjrA ¼iSjk 50½
¼6½ Hkkjr dk lafo/kku & vuqPNsn 25 & /kkfeZd :f<+ rFkk ÁFkk & vfuok;Z ÁFkk ijh{kk & Lo;a ml /keZ ds rRoksa }kjk vo/kkfjr dh tkuk gksxh & /kkfeZd leqnk; }kjk vfHkUu vax le>h tkus okyh ÁFkk,a vkSj fo'okl ^^vfuok;Z** ekus tk,axs rFkk mUgsa vuqPNsn 25 dk laj{k.k ÁkIr gksxkA , vkb vkj 1954 ,l lh 388] , vkb vkj 1961 ,l lh 1402] , vkb vkj 1954 ,l lh 282 rFkk 2018 ,l lh lh vkWuykbu ,l lh 1690 vuqlfjrA ¼iSjk 55½
¼7½ :f<+ & /kkfeZd ÁFkk & tykfHk"ksd & tykfHk"ksd djus dh ÁFkk fnaxcj iaFk ¼rsjkiaFk½ esa Ákphu dky ls fujarj & U;k;ky; dks iqjkru /kkfeZd ÁFkk esa gLr{ksi djus dk vf/kdkj ugha & fo'ks"kr% tc eafnj esa fdlh Hkh o; dh L=h ds Áos'k ij ikcanh ugha & fnaxcj iaFk ¼rsjkiaFk½ rFkk fnxacj iaFk ¼chliaFk½ ds vius Lora= eafnj & og fL=;ksa dks Áos'k djus rFkk iwtk djus dh vuqKk nsrs gSa] rFkkfi] iq#"kksa dks Luku djus rFkk /kksrh vkSj nqiêk iguus ds i'pkr~ tykfHk"ksd djus dh vuqKk gS & ;g vfuok;Z /kkfeZd ÁFkk gS & foHksn ugha & L=h HkDrksa dks ÁR;kHkwr lkafo/kkfud vf/kdkj dk vfrØe.k ughaA 1962 ¼lIyhŒ½ 2 ,l lh vkj 496] 2018 ,l lh lh vkWuykbu ,l lh 1690] 1954 ,l lh vkj 1055 rFkk , vkb vkj 1954 ,l lh 388 vuqlfjrA ¼iSjk 68] 69 ,oa 71½
¼8½ U;k;ky; & /kkfeZd :f<+ rFkk ÁFkk & fuf'pr :i ls U;k;ky;ksa }kjk /kkfeZd xzaFk ugha fy[ks tkuk gksrs & rFkkfi] og /kkfeZd fookn ds ekeyksa esa /kkfeZd xzaFkksa dk vuqlj.k djus rFkk /keZ esa Ápfyr iqjkru ÁFkkvksa dk vuqlj.k djus ds fy, ck/; gS] tc rd fd muls O;fDr ds lkafo/kkfud vf/kdkjksa dk vfrØe.k ugha gksrk gksA ¼iSjk 70½
¼9½ U;k;ky; & /kkfeZd :f<+ rFkk ÁFkk & U;k;ky; /keZ fo|k Áoh.k ugha gksrk & mlds }kjk ,slh vfuok;Z /kkfeZd ÁFkk esa gLr{ksi fd;k tkuk tks yksd O;oLFkk] uSfrdrk] LokLF; ;k vU; fdlh ewy vf/kdkj ds fcYdqy fo#) ugha gks] lkafo/kkfud Ákf/kdj.k dh mldh Hkwfedk dk mYya?ku gksxkA ¼iSjk 72½
ORDER
Sharma, J.-- 1. The petitioners before this Court have filed this present petition stating that the petitioner No. 1 Aarsh Marg Sewa Trust is a Trust established on 18.4.2018 and registered on 28.1.2019 for the purposes of preaching Jain religion. The petitioner No.2 is Executive Member of the petitioner No. 1 Trust. The petitioners have filed present stating that the petition has been filed for securing the fundamental, constitutional and religious rights of the women devotees of Digambar Jain religion.
2. The petitioners' contention is that the respondent No. 6 Bawangaja Siddha Kshetra Trust Committee, which is again a Trust is creating obstacles for women devotees and the women devotees who are Digambar Jain are not being allowed to perform Abhishek in respect of idol of the god Bawangajaji.
3. The petitioners' have stated that they are believers of Jainism and have a deep belief in offering Panchamrat Abhishek and for performing the Pooja by Ashtdravya. It has been stated that Shri Bawangaja Siddha Kshetra is a holy place for Digambar Jain devotees and after every 12 years, Mahamastakabhishek takes place at Bawangaja Siddha Kshetra. It has been further stated that as per the custom, which is in vogue, Digambar Jain men and women devotees do perform Abhishek and Pooja and the practice is going on at Bawangaja Siddha Kshetra.
4. It has been further stated that Digambar Jain holy books have given permission to worship the various Tirthankar and Arihant idols, which are placed in Digambar Jain Temples and holy places, and also known as Jin Pratima and equal rights of worshiping have been conferred upon men and women. The petitioners have enclosed copy of some ancient Digambar Jain holy books containing 32 parts of Abhishek to Jin Pratima by women as Annexr A-1. It has been further contended that in various temples situated in the country belonging to Digambar Jain sect, women are being permitted to offer Panchamrat Abhishek to Jin Pratima. The petitioners have enclosed as many as 82 photographs to support the averment that Abhishek is being performed by women disciples also.
5. The petitioners have further stated that in the year 2008, Sant Guptisagarji during Mahamastakabhishek at Bawangaja created obstacles in the matter of customary practice and the same was published in Bawangaja Special Edition of Jain Tirth Vandana and the so-called publication is also on record. It has been stated that till 2008, there was no dispute. Panchamrat Abhishek was being performed by Jain women in the same manner it is being done at Digambar Jain Temple at Gommeteshwar Bahubali situated in Karnataka, however, after 2008 the Managing Committee has stopped women from performing Abhishek.
6. It has also been stated that the respondent No. 6 has ensured that no Panchamrat Abhishek is carried out at Bawangaja Temple by women and women have been debarred from doing Panchamrat Abhishek/ Abhishek. It has been further stated that on 3.2.2019, the respondent No. 6 Trust organized a Mastakabhishek and the petitioners made a request to perform Abhishek, however, the petitioners were denied permission to perform Jinabhishek and the petitioners were told that females are not being permitted to carry out Abhishek.
7. The petitioner No. 2 has stated that on 3.2.2019 a sum of Rs. 11,000,/- was deposited by her, however, she was informed by one Mr. Vinay Jain that only males are allowed to perform Abhishek and she cannot be permitted to perform Abhishek and question of performing Panchamrat Abhishek does not arise. The communication between the petitioner No. 2 and one Mr. Vinay Jain on Whats App has also been brought on record as Annexr P-5.
8. The petitioners have further stated that an e-mail was sent by husband of the petitioner No. 2 to Mr. Anil Kumar Jain requesting the officials of Bawangaja Trust to permit women to carry out Abhishek, however, no
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