2003 JTR(SC) 796
2003 11 AIC 604 ; 2003 53 AllLR 477 ; 2003 6 ALT(SC) 6 ; 2003 8 JT 286 ; 2004 1 MPWN 90 ; 2003 6 Scale 800 ; 2003 7 SCC 439 ; 2003 SCR 994 ; 2004 1 WLC 112 ; 2003 6 Supreme 209
2003(6) Supreme 209
SUPREME COURT OF INDIA
(From Orissa High Court)
V.N. Khare, CJI., S.B. Sinha, J.
Satya Ranjan Majhi & Anr. -Petitioners
versus
State of Orissa & Ors. -Respondents
SLP (C) No......... (CC 7122 of 2003)
With
I.A. No. 1 (C/delay in filing SLP)
Decided on 25-8-2003
Counsel for the Parties :
For the Petitioners : Janaranjan Das, Gaourang Biswal, Swetaketu Mishra, Ms. M. Gahlot and P.C. Chhinchani, Advocates.
IMPORTANT POINT
Orissa Freedom of Religion Act is a valid legislation and suffers no constitutional invalidity.
Act
Referred
:ORISSA FREEDOM OF RELIGION ACT : S.2, S.7
ORISSA FREEDOM OF RELIGION RULES : R.5
(A) The Orissa Freedom of Religion Act, 1967, read with the Orissa Freedom of Religion Rules, 1989, was challenged on the ground that Rules 4 and 5, particularly sub-rule (3) of Rule 5 inserted by Notification No. 63286 dated 26-11-1999, were ultra vires Sections 2 and 7 of the Act and the rule-making power thereof. The impugned provisions contemplate an inquiry into matters relating to conversion, and the petitioners urged that such provisions abridge the freedom to propagate religion guaranteed under Article 25(1) of the Constitution. This Court, relying on its earlier pronouncements in Rev. Stainislaus v. State of Madhya Pradesh, held that Article 25(1) protects the freedom to transmit or spread ones religion by exposition of its tenets, but does not encompass a fundamental right to convert another person to ones own religion, emphasizing that the word `propagate' in the Constitution must be harmonized with the need to preserve public order. The validity of the Act having been previously affirmed, the focus of the challenge shifted to the compatibility of the impugned rules with the rule-making authority under Section 7 of the Act, especially in the context of public order.
(B) Freedom to propagate religion is not synonymous with a right to convert; inquiry provisions must be read in consonance with public order; challenge to rule-making authority must be specifically raised before the adjudicating authority; substantial compliance with procedural requirements is necessary when testing validity of subordinate legislation; and mere contemplation of an inquiry does not ipso facto invalidate a rule.
Facts of the case:
Petitioners filed a petition under Article 226 of the Constitution challenging Sections 2 and 7 of the Orissa Freedom of Religion Act, 1967 and Rules 4 and 5 of the Orissa Freedom of Religion Rules, 1989, including sub-rule (3) of Rule 5 inserted in 1999, seeking to have the provisions declared invalid. The Orissa High Court dismissed the petition, and the present special leave petition appeals against that order.
Findings of Court:
This Court reiterated the principles laid down in Rev. Stainislaus v. State of Madhya Pradesh, that Article 25(1) does not guarantee a right to convert another person, and that propagation is distinct from conversion. The impugned Rules were examined in the context of public order and the rule-making powers under the Act. The Court noted that no specific challenge to sub-rule (3) of Rule 5 was made before the High Court, and that such a contention could not be permitted to be raised for the first time before this Court. The mere existence of an inquiry contemplated by Rule 5 does not render it invalid.
Issues:
Whether Sections 2 and 7 of the Orissa Freedom of Religion Act, 1967, and Rules 4 and 5, including sub-rule (3) of Rule 5, are constitutionally valid; whether the impugned rules are ultra vires the rule-making power under Section 7 of the Act; whether a specific challenge to sub-rule (3) of Rule 5 was properly raised before the High Court; and whether the contemplation of an inquiry under Rule 5 invalidates the rule.
Ratio Decidendi:
The validity of the Orissa Freedom of Religion Act having been previously upheld, the challenge to subordinate rules must be assessed in light of the scope of rule-making power under Section 7, the requirement that contentions be specifically raised in the appropriate forum, and the principle that ensuring public order is a legitimate basis for regulating matters related to conversion; accordingly, the impugned rules are not invalid merely because they provide for an inquiry into matters of conversion.
Result:
The special leave petition is dismissed.
(A) The Orissa Freedom of Religion Act, 1967, read with the Orissa Freedom of Religion Rules, 1989, was challenged on the ground that Rules 4 and 5, particularly sub-rule (3) of Rule 5 inserted by Notification No. 63286 dated 26-11-1999, were ultra vires Sections 2 and 7 of the Act and the rule-making power thereof. The impugned provisions contemplate an inquiry into matters relating to conversion, and the petitioners urged that such provisions abridge the freedom to propagate religion guaranteed under Article 25(1) of the Constitution. This Court, relying on its earlier pronouncements in Rev. Stainislaus v. State of Madhya Pradesh, held that Article 25(1) protects the freedom to transmit or spread ones religion by exposition of its tenets, but does not encompass a fundamental right to convert another person to ones own religion, emphasizing that the word `propagate' in the Constitution must be harmonized with the need to preserve public order. The validity of the Act having been previously affirmed, the focus of the challenge shifted to the compatibility of the impugned rules with the rule-making authority under Section 7 of the Act, especially in the context of public order.
(B) Freedom to propagate religion is not synonymous with a right to convert; inquiry provisions must be read in consonance with public order; challenge to rule-making authority must be specifically raised before the adjudicating authority; substantial compliance with procedural requirements is necessary when testing validity of subordinate legislation; and mere contemplation of an inquiry does not ipso facto invalidate a rule.
Facts of the case:
Petitioners filed a petition under Article 226 of the Constitution challenging Sections 2 and 7 of the Orissa Freedom of Religion Act, 1967 and Rules 4 and 5 of the Orissa Freedom of Religion Rules, 1989, including sub-rule (3) of Rule 5 inserted in 1999, seeking to have the provisions declared invalid. The Orissa High Court dismissed the petition, and the present special leave petition appeals against that order.
Findings of Court:
This Court reiterated the principles laid down in Rev. Stainislaus v. State of Madhya Pradesh, that Article 25(1) does not guarantee a right to convert another person, and that propagation is distinct from conversion. The impugned Rules were examined in the context of public order and the rule-making powers under the Act. The Court noted that no specific challenge to sub-rule (3) of Rule 5 was made before the High Court, and that such a contention could not be permitted to be raised for the first time before this Court. The mere existence of an inquiry contemplated by Rule 5 does not render it invalid.
Issues:
Whether Sections 2 and 7 of the Orissa Freedom of Religion Act, 1967, and Rules 4 and 5, including sub-rule (3) of Rule 5, are constitutionally valid; whether the impugned rules are ultra vires the rule-making power under Section 7 of the Act; whether a specific challenge to sub-rule (3) of Rule 5 was properly raised before the High Court; and whether the contemplation of an inquiry under Rule 5 invalidates the rule.
Ratio Decidendi:
The validity of the Orissa Freedom of Religion Act having been previously upheld, the challenge to subordinate rules must be assessed in light of the scope of rule-making power under Section 7, the requirement that contentions be specifically raised in the appropriate forum, and the principle that ensuring public order is a legitimate basis for regulating matters related to conversion; accordingly, the impugned rules are not invalid merely because they provide for an inquiry into matters of conversion.
Result:
The special leave petition is dismissed.
ORDER
Delay condoned.
2. By means of a petition under Article 226 of the Constitution, the petitioners challenged Sections 2 and 7 of the Orissa Freedom of Religion Act, 1967 (for short "the Act") and Rules 4 and 5 of the Orissa Freedom of Religion Rules, 1989 (for short "the Rules"). The petition was dismissed by the Orissa High Court. It is against the said order and judgment, the petitioners are before us by means of this special leave petition.
3. It may be noted that this Act has been held to be a valid piece of legislation by this Court in Rev. Stainislaus v. State of Madhya Pradesh and others, AIR 1977 SC 908 wherein it has been held under :
"19. We have no doubt that it is in this sense that the word `propagate has been used in Article 25(1), for what the Article grants is not the right to convert another person to one s own religion, but to transmit or spread one s religion by an exposition of its tenets. It has to be remembered that Article 25(1) guarantees "freedom of conscience" to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is no fundamental right to convert another person to 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."
4. Referring to Article 25 of the Constitution of India, it was observed that "....What is freedom for one, is freedom for the other, in equal measure, and there can therefore, be no such thing as a fundamental right to convert any person to one s own religion."
5. Learned counsel appearing for the petitioners, however, before us sought to assail sub-rule (3) of Rule 5 of the Rules which has been inserted by a Notification No. 63286 dated 26-11-1999. The impugned judgment does not show that the vires of the aforementioned provision was specifically mooted. Before the High Court, the principal argument advanced on behalf of the petitioners was that the said Rules are ultra vires the rule-making power contained in Section 7 of the Act. The High Court has dealt with the matter in paragraph 5 of its judgment. We have also perused the written submissions filed by the petitioners before the High Court, but we do not find any specific ground questioning the said Rule other than mentioned hereinbefore was raised before the High Court. Furthermore, the question as to whether rule is ultra vires or not, must be adjudged having regard to public order in mind. Had such a contention been raised, the State would have justified the making of the order, inter alia, on the ground of maintenance of public order. Such contention, therefore, cannot be permitted to be raised for the first time before this Court.
6. Merely because an inquiry is contemplated under Rule 5, it does not ipso facto make the Rule invalid. We, therefore, do not find any merit in the special leave petition. It is, accordingly, dismissed.
SLP dismissed..
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Parallel Citations of other Journals :
Satya Ranjan Majhi & Anr. v. State of Orissa & Ors., 2003(6) Supreme 209 : (2003) 7 SCC 439 : 2003(8) JT 286 : 2003(10) SBR 129.
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