R. M. Sahai, J.- - (1.) GALAXY of eminent intellectuals, academicians, Social workers, religious heads and even Godman, apart from numerous interveners, feeling religiously hurt and morally wounded by telecast of serial Uttar Ramayan from Doordarshan have raised issue of enormous importance and profound sensitivity touching upon religious autonomy guaranteed by Article 25 of Constitution its susceptibility depth and impact.
(2.) RELIGION is a realm beyond reason and logic as belief in the unseen 'Holy' and faith in the mythology emanates worship by prayer or sacrifice, contemplation or incantation magic or ritual. What constitutes religion has eluded theologians, philosophers and scholar alike. But what is universally accepted it is one's own preception of the 'Divine' or belief in creator or faith in Dharmma or observance of rituals etc. Dr. Radha Krishnan, the famous philosopher, considered religion as specific attitude of self, Swami Vivekanand described it as comprising of philosophy, mythology and rituals. Encyclopaedia Britannica explains religion as, "Man's relation to that which he regards holy............Worship is probably the most basic of these, but moral conduct, right belief, and participation in religious institutions are generally also constituent elements of the religious life as practised by believers and worshippers and as commanded by religious sages and scriptures". In S. P. Mittal v. Union of India, AIR 1983 SC 1 while highlighting various facts of religion its meaning and understanding it was observed that, "RELIGION like 'democracy' and 'equality' is an elusive expression which everyone understands according to his own pre-conception." In Commissioner H.R.E. v. L.T. Swamiar, AIR 1954 SC 282, it was held that religion is a matter of faith with individual or community. In Ratilal v. State of Bombay, AIR 1954 SC 388, it was held that religion undoubtedly has its basis in system of beliefs and doctrines which are regarded by those who profess their religions to be conducive to their well being. Hinduism is a religion professed and practised by Hindus, primarily residing in this country but spread all over the world. Transmigration of soul and re-birth is its essence. Its followers may be worshippers of Vishnu or Shiva popularly known as Vaishanavits and Shavites. All the same they are Hindus whose religion is Hinduism. In Religions of India published by Clarion Books Hinduism is described as a "geographical term based upon the Sanskrit name for the great river that runs across the northern boundaries of India, known as Sindhu, the entire religion to the south-east of the Sindhu which the Greeks call the Indus, came to be known as the land of the Hindus, and the vast spectrum of faiths that flourished here acquired the generic name Hinduism. In fact, Hinduism calls itself the Sanatana Dharma, the eternal faith, because it is based not upon the teachings of a single preceptor but on the collective wisdom and inspiration of great sees and sages from the very dawn of Indian civilization" Encyclopaedia Britannica narrates Hinduism thus, " A precise definition of Hinduism is hard to formulate since the beliefs and practices of the Hinduism is very widely different both regionally and within a given region from class to class. It is a favourite dictum that Hinduism is not a religion but a whole way of life, whose precepts cover a vast range of human activity outside the scope of most modern religion." Dr. Radha Krishnan opined that, " Hinduism is, therefore, not a definite dogmatic creed, but a vast complex but subtly unified means of spiritual thought." According to Swami Nikhilanand the four cardinal principles of Hinduism are non-duality of the God head, the divinity of the soul, the unity of existence and harmony of religion. In Yagnapurushdas v. Maldas, AIR 1966 SC 1119 the Hon'ble Supreme Court after exhaustively reviewing various authorities held that Hinduism was a religion with definite philosophy. To suggest, therefore, even remotely that Hinduism is not a religion is being academic only. However, whether Hinduism is an, " utterly diverse conglomeration or doctrines cults and way of life'', or it holds, " an incomparable form of Monism in accompaniment with the idea of other dieties subordinate to non- duel supreme spirit", or it is, "specific attitude or self", or it is generic name for followers or Vaishanavites and Shavites, whose principal source of knowledge and religion are Vedas and Upnishads, Ramayan, the great epic rich in wisdom and philosophy having profound influence on life and culture of Hindus, is undoubtedly one of the auxiliary scriptures of the Indu religion. It glorifies man as God, sets up ideals for one and all which have been cherished and imitated by people, rich or poor, saint or sees, phioloshpher or Scholar, Scientist or theologist, and has helped in ennobling them and succouring them in tribulations. It has served as an inexhaustivle source of inspiration to great poets. The original is universally accepted to have been written by Sage Balmiki in Sanskrit, which has either been translated or has furnished source for poetic or dramatic rendering in various languages in different parts of country. Large number of such works written in different languages have been noticed in cultural heritage of India published by Ram Krishna Mission. Ramayan is a sacred book and its sanctity and status is no less than Koran and Bible. True it is Kavya or Mahakavya but it was written on dictate of Brahma the creator by Rishi Balmiki on what was narrated by Narad Muni. It may not be the words spoken by God but it is a record or what God said. In Lalai Singh Yadav v. State, 1975 ALJ 601, a Special Bench of this court observed Ramayan was almost a Dharm Granth, a moral and religious treatise which was not past history but perennial experience. In Balmiki Ramayan published from Gita Press it is said to have same status as Vedas. Kane in his book Dharm Shastras noticed that although Ramayan was a Kavya yet on account of its ideals it was a source of Dharm. It has been respected as such for thousand years. Its value as source of Hindu religion has not been doubted even by Western Scholars. Lord Ram the model of virtue, round whom the whole epic revolves is worshipped not only in this country but according to Baroda Institute was worshipped even in Cambodia and China in 600 A. D. He was, seventh incarnation (avtar) of Bhagwan Vishnu. " Ram's name became most often invoked at time of death." (Encyclopaedia Britannica). Similarly Devi Sita an ideal of womanhood is worshipped in every household as mother Goddess. Uttar Kand is one of the chapters in Balmiki Ramayan which amongst other episodes includes banishment of Devi Sita. It was said to be interpolation, various reasons were advanced for it. Voluminous literature has been filed. Reliance was placed on various Shloks from Balmiki Ramayan itself and efforts made by research scholars. What is true and which version is authentic is an exercise which need not be gone into by this court. Suffice it to mention that from various books written by scholars of eminence both from East and West and stupendous research work done notably by Oriental Institute Baroda there appears to be clevage of opinion, on interpolation of Uttar Kand and the episodes relating to banishment of Devi Sita by Lord Ram etc. In Rightenous (sic) J. L. Brocking on has expressed doubt rather has stated that it has long been recognised that the first and last book Bal Kand and Uttar Kand were later additions. On the other hand the work published by Baroda Institute casts doubt because of Raghuvansh written by Kalidas. In History of Philosophy Eastern and Western Volume one sponsore by Government of India the Editorial Board of which was presided by late Dr. Radha Krishnan, it is noticed that Ramayan did not, "come down to us in the original in which its author, Balmiki conceived it, but as considerably overlaid and disfigured with interpolations of all sorts. Moreover, it appears today in atleast three important recensious the West Indian, the Bengal and the Bombay, which differ from each other to such an extent that about one third of the verses in each is found in neither of the two." But the birth of Lav and Kush in forest appear to be accepted by all. Even Ram Charit Manas written by Tulsidas mentions it.
(3.) WITH this preface about Hinduism and religion we now proceed to examine scope of Article 25. Religion being the binding faith and devinenector for the survival and growth of men every civilised society has permitted its preservation. The American and Australian Constitutions too guarantee free exercise of religion. When our Constitution was framed visualising a secular society and preamble set up the goal of liberty of faith and belief then it was concretised by providing freedom of conscience and right freely to profess, practice and propagate religion. Religious autonomy articulated in Article 25 "has left every person free in the matter of his relation to his creator, if he believes in one ", Saifuddin v. State of Bombay, AIR 1962 SC 853. The words used are of wide import. They can not be freezed in a rigid mould nor it is possible while constitutionalising the relationship of State to Religion to quest for too literal construction as problems such as these may not have been envisioned when the constitution was framed. Yet it may be legitimate to find out doctrinal frame work, which would best realise the value which lies at bottom of guarantee. Freedom of conscience and right freely to profess, practice and propagate religion expands the scope and widens the ambit to account for multiple form of religious exercises. American Courts have extended operation of freedom clause to what is even "arguably religion." Probably the best illustration is furnished by Malnak v. Maharshi Mahesh Yogi case in which the American Courts while considering free exercise clause held Transcendental meditation taught to students was religion even when vast majority considered it to be mental exercise only. In Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388, the Hon'ble Court while explaining scope of Article 25 observed "Thus, subject to the restrictions which this Article imposes, every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others." It was reiterated by the Hon'ble Supreme Court in Rev. Stainislaus v. State of Madhya Pradesh, AIR 1977 SC 908. In Shisur Maths case, AIR 1954 SC 282, it was held that Article 25 secured to every person not only the freedom of religion belief and conscienced but also the right to express his belief in such outward acts as he thought proper. Since religion has not been defined, obviously, because it is incapable of any precise specification it extends and includes any renet or belief or practice which one considers to be religion. Even fasting or bathing in a sacred river is religion for Hindus. Since Ramayan is a source of religion and has the same status as Dharm Granth or Vedas any distortion of it or any disrespect shown to its Characters Lord Ram and Devi Sita would attract Article 25, what exactly is the violation and whether it infringes the right of petitioner shall be adverted little latter but it appears necessary to clear the haze about competing right of the produce emphasised time and again. It proceeded obviously on fallacy about jural relationship between right and duty. The antithesis of right is absence of it in others or existence of no right and its corresponding is duty. A legal right is a right which vests in a person, is available against a determined person or body, that is in personam, or against the whole world, that is in rem, whose breach or violation is actionable and can be enforced in a court of law. A person claiming violation is not competing with another person but seeking enforcement of his right guaranteed by Constitution. He may succeed or fail depending on merits of his claim and interpretation of Article 25 but he cannot be denied relief because the other person has equal competing right. As observed by Lathem C.J. in Adelaide Company of Jeharat's Witnesses v. The Commonwealth, 1963-67 CLO 117. The constitution projects religion with a community organised under a constitution so that the continuance of such protection necessarily assumes the continuance of the community so organised. This view makes possible to reconcile religious freedom with ordered government." The decision has been approved by our Supreme Court in Shishir Math case, AIR 1954 SC 282, and Bijoi Emmanul v. State of Kerala, AIR 1987 SC 748, wherein the Hon'ble Court further held, "what Lathom C.J. has said about the responsibility of the court accords with what we have said about the function of the court when a claim to the Fundamental Right guaranteed by Article 25 is put forward." A person's religious faith and belief are his own and his freedom to hold them is absolute subject to restrictions envisaged m the constitution itself. If it is well founded then it cannot be negatived because it shall be interfering with others right. Establishment of right means the other have corresponding obligation to obey it. Moreover the relief sought is to prohibit Doordarshan a State Department or agency of State from telecasting it. Restrictive clause on exercise of right do not create a right in favour of State or its agency or anyone acting on its behalf to claim that its action being not contrary to public order health or morality it can interfere with a person's right guaranteed under this Article. To put it differently the Doordarshan cannot interfere with otherwise absolute right of petitioners because the telecast did not create any law and order problem or it was not against morality. Negative provision in a statute according to Solmand gives rise to negative duty. But the negative right which vests in anyone against a person who claims positive right cannot give rise to or create positive right. If the petitioners have a right of freedom of conscience subject to public order, health and morality then it is not possible for anyone may be the whole world to deprive them of their right because their action was not against public order or health or morality. The submission of competing right therefore, appear to be misconceived.;