|Cases referred to
Counsel who appeared
N.C. Chatterjee and U. M. Trivedi (H. H. Dalal and I. N. Shroff -with them) for the appellants in Appeal No., I of 1954.Rajinder Narain for the appellants in Civil Appeal. No. 7 of 1954.
M. C. Setalvad and C.K. Daphtary (G. N. Joshi and Porus A. Mehta, with them) for the respondents in both the appeals.
The Court following the judgement in the case of Madras v. Sri Lakshmindra Tirtha Swamiar made the following observations.
Article 25 of the Constitution guarantees to every person and not merely to the citizens of India the freedom of conscience and the right freely to profess practise and propagate religion. This is subject, in every case, to public order, health and morality.
Further exceptions are engrafted upon this right by clause (2) of the article. Sub-clause (a)of clause (2) saves the power of the State to make laws regulating or restricting any economic financial, political or other secular activity which may be associated with religious practice; and sub-clause (b) reserves the State’s power to make laws providing for social reform and social welfare even though they might interfere with-religious practices.
Therefore, subject to the restrictions which Article 25 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 is immaterial also whether the propagation is made by a person in his individual capacity or on behalf of any church or institution.
 AIR 388
The Manager of a Jain Public Temple and Trustees of Parsi Panchayat Funds and Properties in Bombay challenged before the Bombay High Court the constitutional validity of the Bombay Public Trust Act of 1950.
The petitioners in both the cases assailed the constitutional validity of the Act known as the Bombay Public Trusts Act, 1950 (Act 29 of 1950) which was passed by the Bombay Legislature with a view to regulate and make better provisions for the administration of the public and religious trusts in the state of Bombay. Its provisions were made applicable to temples, maths and all other trusts, express or constructive, for either a public, religious or charitable purpose or both.
Therefore, the case was filed on the ground that the provisions of the Bombay Act of 1950 contradicted article 25 (1) and flexibility to oversee matters of religion as secured by article 26 (b) of the Constitution.
The Bombay High Court denied the appeal in the light of sub-provision (c) and (d) of article 26 of the Constitution, which gives the State to authorize the enactment as given in the Bombay Act, therefore, the Bombay High Court settled the case for the State on the premise of the definition that the Court provided for religion in the momentous case.
This definition decreased religion to otherworldly and moral viewpoints and excluded mainstream exercises such as religious practices.
A religious institution has the undoubted right guaranteed by the Constitution to manage its own affairs in matters of religion and this includes the right to spend the trust property or its income for religion and for religious purposes and objects indicated by the founder of the trustor established by usage obtaining in a particular institution.
To divert the trust property or funds for purposes which the Charity commissioner or the court considers expedient or proper, although the original objects of the founder can still be carried out, is an unwarrantable encroachment on the freedom of religious institutions in regard to the management of their religious affairs.
Religious practices or performances of acts, in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines.
Thus, if the tenets of the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner, it cannot be said that these are secular activities partaking of commercial or economic character simply because the involve expenditure of money or employment of priests or the use of marketable commodities.
As such, the Court stressed that, “No outside authority has any right to say that these are not essential parts of religion and it. is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate.”
Section 44 of the Bombay Public Trust Act, 1950, relating to the appointment of -the Charity Commissioner as a trustee of any public trust by the court without any reservation in regard to religious institutions like temples and Maths is unconstitutional and must be held to be void.
Furthermore, it was also contended that the contribution levied on the trust was a tax, which was ultra vires of the State Legislature to impose. In answering this issue, the Court held that section 58 of the Act is not ultra vires of the State Legislature because the contribution imposed under the section is not a tax but a fee which comes within the purview of entry 47 of List III in Schedule VII of the Constitution.
Appeals are allowed only in part and a mandamus was issued in each case restraining the State Government and the
Charity Commissioner from enforcing against the appellants the following provisions of the Act namely;