Ajit Kumar Sengupta, J. - (1.) In this application under Article 226 of the Constitution of India, the petitioner has asked for an order restraining the State of West Bengal from handing over the birth place of Swami Vivekananda situated at Gour Mohan Mukherjee Street, Calcutta to Ramakrishna Mission, Belur Math. The State Government decided to acquire the ancestral home of Swami Vivekananda at a cost of Rs. 17,50,203/- in 1987 being the 125th Birth Anniversary of Swamiji. The State Government would provide for the compensation and Ramakrishna Mission will develop the ancestral house as a cultural centre. This acquisition was made at the request of Ramakrishna Mission. The contention of the petitioner is that according to the Division Bench Judgment of this Court in the case of Madhab Chandra Bandopodhya and Ors. v. State of West Bengal and Ors. reported in 90 CWN 306, the Ramakrishnaites are minority based on religion. The birth piece of Swamiji and ancestral house at Gour Mohan Mukherjee Street, Calcutta is a national asset and such national asset cannot be given to a religious minority. If a property has been acquired for public purpose it cannot be banded over to a religious minority for propagating minority culture. Once the birth place of Swamiji is handed over to Ramakrishra Mission after acquisition Ramakrishnaites would use it as a pulpit for propagation of minority religion at the cost of the nation as a whole. Indeed, to think of Swami Vivekananda merely as a religious reformer is to belittle the genius that Swami Vivekananda was. It is the contention of the petitioner that the birth place of Swami Vivekananda is a national asset and is fit to be a national monument and cannot be banded over to Ramakrishna Mission which is a minority organisation based on religion. If it is a national asset it cannot be converted to a minority asset at public expenses. The other contention is that since the entire cost of expenses is borne by the State Government it will be highly discriminatory to hand it over to a minority organisation. It is the contention that Swami Vivekananda was a national leader and his memory should be commemorated by the nation as a whole and cannot be handed over to a sectarian organisation. In other words, the contention is that the cultural centre to be developed at the birth place of Swami Vivekananda should be developed for the purpose of propagating national culture and not a minority religious culture at the cost of the nation.
(2.) Mr. Bhunia, the learned Counsel for the petitioner, has contended that the protection claimed under Article 30(1) as religious minority being the cult of Sri Ramakrishna was granted by the Division Bench of this Court in the case of Madhab Chandra Bandopadhyo (Supra). In this connection, Mr. Bhunia has relied on the following observation in the said judgment: "We accordingly affirm the trial Court's finding that Rama-krishna Mission bad established the college. We proceed to consider whether the followers of Ramakrishna constitute a minority based on religion and whether Ramakrishna Mission which had established the college could claim, in relation to the same, Fundamental Right under Article 30 of the Constitution," Mr. Bhunia has also relied on the following observations in the said Division Bench judgment:- "It is now universally recognised that Sri Ramakrishna and his disciples, foremost of whom was Swami Vivekananda, had initiated one of the most remarkable religious movements of the recent times. Prof. Arnold Toynbee in his foreword of the book "Sri Ramakrishna and His Unique Message" had written : "Sri Ramakrishna's message was unique in being expressed in action -religion is not just a matter for study : it is something that has to be experienced and to the lived and this is the field in which Sri Ramakrishna Manifested his uniqueness." "History of the establishment of Ramakrishna Mission and Ramakrishna Math also indicates that they were formed for professing and also for propagating the religion of Sri Ramakrishna. Being initiated by Sri Ramakrishna, a monastery of Ramakrishna order was established at Baranagar in the year 1886." "On 30th January, 1981, Swami Vivekananda had created a trust in respect of Belur Math by executing and registering a Debuttar Deed and declaration of trust. He recited in the said deed that be had purchased the properties with a view to secure a permanent location for the emblem and relics of his Guru Thakur Ramakrishna. The deed also recited that the dedication was being made for the service of, use and benefit of the said Thakur." "The respondents have also produced the Memorandum of Association of the Ramakrishna Mission which was registered on 4th May, 1909 under the Societies Registration Act, 1860. The said Memorandum of Association was subsequently revised according to the West Bengal Societies Registration Act, 1961. According to the said memorandum, the objects of the Association, Inter alia, (a) to impart and promote study of Vedanta and its principles as propounded by Sri Ramakrisbna and practically illustrated by bis own life aid of comparative theology in its widest form, (b) to impart and promote the study of arts, sciences, industries, (c) to rain teachers in all branches of knowledge, (d) to carry on educational (work among the masses, (e) to establish, maintain, carry on and assist schools, colleges, universities hospitals.. .......... and other education and/or charitable works or institutions of a like nature. According to the Rules and Regulations of the Ramakrishna Mission, all followers were whether lay or monastic of Paramhansha Ramakrishna, may be a member of the Association if elected at a meeting of the Association or nominated by the Governing body. A person intending to be a member is required to sign a prescribed form, inter alia, declaring that he looks upon Sri Ramakrishna as an illustration and embodiment of the Religion Eternal, whose life and teachings helped to understand the plan and purpose of all religions of the world and their underlying truth and harmony. Intending member is further required to declare that be looks upon all religions as path3 of God and that he shall try to live in peace and fellowship with tho followers of all religions. The trustees under the aforesaid Deed of Trust of Belur Math dated 30th January, 1901 form the Governing body of Ramakrishna Mission." "Mr. Bhunia has submitted that Ramakrishna Mission being a Society registered under the Societies Registration Act could not have as one of its objects, propagation of religion. According to Mr. Bhunia charitable purpose within the meaning of Section 20 of the Societies Registration Act, 1860 did not include religious purposes. In this connection, be had relied upon the decision of the Patna High Court in the case of Md. Yunus v. The Inspector General of Registration and Others, AIR 1980 Pat.138. In the said case a Division Bench of the Patna High Court, inter alia, held that the expression "charitable purposes" used in Section 20 of the Societies Registration Act, 1860 did not embrace purposes which were religious or predominantly religious. Accordingly, registration of a Society which had been formed with object of management, supervision and control of mosque and madrasa was held to be bad. The Allahabad High Court in this case of Anjuman Islamia of Mutta v. Nasiruddin, (1906) ILR 28 All 384 and the Madras High Court in the case of Khaji Muhammad Hussain Sahib v. Mahiday Mahmood Jamait Managing Committee, Puddupet, AIR 1940 Mad. 167 took contrary views regarding the effect of inclusion of religious purposes amongst the objects of registration of the Society under Societies Registration Act, 1860. The Madras High Court in the said reported case held that a society for religious purposes would ordinarily be a society for charitable purposes and, therefore, its registration would be legal. The Madras High Court was.of the view that Indian Legislature had made no distinction between religious and charitable purposes. The Allahabad High Court in their decision just referred to was of tho opinion that where a society was formed for certain purposes whose paramount object was charitable, tho fact that some of the purposes might not be strictly charitable bat religious would not render the society nonetheless a charitable society, if the purposes was one intended of benefit the public or a considerable portion of the public. According to the Madras High Court improvement of Islamic education and rendering of pecuniary help to poor Musafirs were charitable purposes." "We are unable to hold that in the above quoted passage the learned Chief Justice had intended to lay down that ail the faiths and beliefs mentioned by him have continued to form part of Hindu religion. He only pointed out that, out of Hindu religion and philosophy these different faiths and religions had evolved and developed. Some of tho religious teachers while remaining within the folds of Hindu religion, attempted to reform and rationalise; other religious teachers founded separate and distinct religious faiths. It was not within the scope of the said decision to determine whether all or any of these faiths had continued to form part of Hindu religion. Sikhs, Jains and Buddhists may be still governed by same personal law as Hindus but the same does not establish that their religious which arose out of dissent from Hindu Religion still form part of the Hindu Religion (see paragraph II of the decision in Wealth Tax Commissioner, West Bengal v. Sm. Champa Kumari Singh, AIR 1972 SC 2119). We may also respectfully point out that according to Explanation (ii) to Article. 25(2) of the Constitution only for purpose of providing welfare and reform or for throwing open religious institutions of a public character, reference to Hindus would be construed as including a reference to persons professing Sikh, Jain or Buddhist religion. The said explanation (ii) of Article 25(2) is of no relevance for deciding who would be considered as minorities based on religion or language within the meaning of Article 30 of the Constitution. In Yagaapurush Dasji's case (Supra), the Supreme Court came to the conclusion that Swaminarayan sect was not a religion distinct and separate from Hindu religion because the watch ward of the founder of the said sect was devotion to Krishna with observance of duty and purity of life. Philosophically, the founder was a follower of Ramanuja and essence of his teaching was that every individual should follow the main Vedic injunctions of a god, pious and religious life. Swaminarayan was held to be a Hindu saint who was determined to remove corrupt practises which had crept in the said religion." ''The Supreme Court in the case of D. A. V. College, Jallandhar v. State of Punjab, AIR 1971 SC 1737 and in the case of D. A. V. College, Bhatinda v. State of Punjab, AIR 1971 SC 1731, upheld the claim that the followers of Arya Samaj ought to be considered a religious minority at any rate as part of Hindu religious minority in the State of Punjab. the Court found it unnecessary to determine whether Arya Samaj was also a religious denomination as the same did not arise for consideration. In the said cases the Supreme Court held that the Arya Samaj admitted to membership only those Hindus who subscribe to the decalogue and belief in the cannon of Vedic interpretation as laid down by Swami Dayanacda. In order to be an Arya Samajist, non-Hindus,such as Muslims and Christians were required to undergo a ceremony of purification or Suddhi. Thus, in these (wo reported cases the Supreme Court again emphasises acceptance of the Vedas as once of the tests for determining whether Arya Samaj is form part of the Hindu minority in Punjab. Secondly, the Supreme Court had considered Arya Samaj as a reformist movement which rejected manifold absurdities found in Smrities and in tradition and attempted to establish a purer and more rational faith."
(3.) Mr. Bhunia has also contended that protection is claimed and granted as Religious denomination under Article 26(a)(b). It is also contended that from the said judgment of the Division Bench it would he evident that Ramakrishna Mission is entitled to protection as religious denomination under Article 26(a)(b) of the Constitution. In this connection he has relied on Paragraphs 48, 55, 56, 57, 58 and 59 of the said judgment which are set out hereunder:- "48 The Expression "charitable purposes" has not been defined in the Constitution. Therefore, Mr. Gupta has rightly submitted that Rules of Statutory Construction ought to be applied hearing in mind that the said expression appears in a Constitutional Legislation. One of the cardinal rules of statutory interpretation is that if a word or expression has acquired a particular legal meaning by process of judicial decision, the legislature is deemed to be aware of the same meaning and unless there is any contrary indication in the particular statute the said word when used in the said statute would bear the same meaning (See (8) Rukma Rat's Case 5 M. I. A. 234 at page 250 ; see also Gourdhan Das v. Municipal Committee, AIR 1963 SC 1742, Paragraph 31). 55. It has been repeatedly held that what is protected under Article 26(b) are those acts and ceremonies which, according to the tenets of any particular religious sect, would be regarded as essential part of that religion. A religious practice need not, however, be universal nor cannot be negatived merely because it baa been shown to be limited So certain religious denominations. But the practice in question must be essential and integral part of the religion and not extraneous or unessential accretions (See Durga Committee Ajmer v. Syed Hassan Ali) (Supra). Thus, the protection under Articles 25 and 26 of the Constitution of India arc not limited only to matters of doctrine or belief but extends to acts done in pursuance of religion ; thus, Articles 25 and 26 of the Constitution contain a guarantee for rituals, observances, ceremonies and modes of worship which are integral part of the religion (See Sardar Syedna Taher Safiuddin Saheb v. State of Bombay, AIR 1962 SC 853). 56. No doubt, what constitutes essential part of religion or religious practice has to be decided with reference to the doctrine of the particular religion. Courts have power to determine whether a particular rite or observance is to be regarded as essential to professing and practising a particular religion (vide Sirur Math's case) (Supra), Ratilal Panchand Gandhi's case (Supra), Tikayat Sri Gobinda Lalji v. State of Rajasthan, AIR 1963 SC 1368 and Jagadiwarananda v. Police Commissioner, Calcutta, AIR 1984 SC 51). Mr. Seervai in his book, Constitutional Law of India Vol. 1, 3rd Edition has correctly observed that the real question is whether religious denomination looks upon it as an essential part of its religion however irrational it may appear to persons who do not share that religious view, the view of the denomination must prevail and it is not open to court to describe as irrational that which is part of denomination is religion (see also Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255, Sri Govindalalji v. State of Rajasthan, AIR 1969 SC 1638(1661). 57. We have found that according to the teachings of Sri Ramakrishna and Swami Vivekananda religion must be meaningful and practicable and divinities to be realised not by following a negative part of withdrawal but by rendering service to the humanity which is considered a part of the divinity. Thus, it is an essential part of the cult of Sri Ramakrishna to establish educational and charitable institutions. At least so far as followers of Sri Ramakrishna is concerned, spread of education form an essential matter of their religion. We must, however, make it clear that we do not mean to lay down that establishment and maintenance of educational institution would be essential part of every religious denomination and sect. Article 26(B) would be applicable to educational institutions of those religious denominations for whom establishment and management of such institutions form essential part of religious faith and practice. For other religious denominations, it is quite possible that such works would be part of its secular activity. In each case the court has to examine the belief and practice of a particular religious denomination to decide what activities constitute essential and integral part of their religious faith. We have come to the conclusion that for Rama-krishnaities establishment and maintenance of educational institutions is an essential part of their religious faith and practice. 58. In the above, although the West Bengal College Teachers (Security of Service) Act, 1975 and the West Bengal College Service Commission Act, 1978 do not contain any express provision excluding their application to educational Institutions established and maintained by Ramakrishna Mission, we bold that the said two Acts would be inapplicable to Sri Ramakrishna Vivekananda Centenary College. Otherwise same would amount to infringement of the rights under Articles 26 (a) and (b) of the Constitution enjoyed by Ramakrishna Mission. In such a situation, the two Acts need not be declared ultra vires and it would be sufficient to hold that the Acts are inapplicable (vide Rev. M. Mark Netto v. Government of Kerala, MR 1979 SC 83). 59. For the foregoing reasons we dismiss F M.A.T. Nos. 13 of 1984 and 270 of 1984. We allow F.M.A.T. No. 490 of 1984. We also allow in part F.M.A.T. No. 42 of 1984. We affirm the order of the learned trial Judge dismissing the writ .application subject to the modification that Article 30 and also Clauses (a) and (b) of Article 26 of the Constitution of India would be applicable in case of Sri Ramakrishna Vivekananda Centenary College. We leave open the question of legality or otherwise of the Calcutta University's directions for reconstitution of the Governing Bodies of Sri Ramakrishna Mission Residential College, Narendrapur, Ramakrishna Mission Siksha Mandir, Howrah and Ramakrishna Mission Vidya Mandir, Howrah.";