Allahabad High Court
Piyush Srivastava vs State Of U.P. Thru Chief Secretary & Anr. on 27 August, 2020
Bench: Pankaj Kumar Jaiswal, Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 1 Case :- P.I.L. CIVIL No. - 13657 of 2020 Petitioner :- Piyush Srivastava Respondent :- State Of U.P. Thru Chief Secretary & Anr. Counsel for Petitioner :- Ishan Khanna Counsel for Respondent :- C.S.C.,A.S.G. Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Dinesh Kumar Singh,J.
1. Heard Mr. Ishan Khanna, learned counsel for the petitioner, Mr. S.B. Pandey, Senior Advocate assisted by Mr. Neeraj Chitravanshi, learned counsel for respondent No.2 and Mr. H.P. Srivastava, learned counsel for the State.
2. Present writ petition (P.I.L.) has been filed under Article 226 of the Constitution of India with following reliefs:-
"(a) Issue appropriate writ, order or direction, directing the Respondent no.1 to forthwith take steps to take over the administration and control of surplus funds and assets of all Public and Religious Trusts, Non-Governmental Organization, Religious and/or Charitable Endowments, Religious Denominations or Organizations including temples, churches, gurudwaras, mosques/waqf etc. in the State of Uttar Pradesh, irrespective of religion, faith, shashtras or the object & purpose for which such Trusts. Organizations, Endowments, etc were made, so as to enable the State Government to forthwith utilize the surplus funds and assets lying with them in public interest;
(b) Such further and other order be made as this Hon'ble Court may deem fit and proper in the interest of justice and in the facts and circumstances of the case."
3. The petitioner claims to be a social worker and he works for eradication of corruption across the State. The petitioner also claims to be an activist who uses Right to Information Act as a tool to expose corruption in the society. The petitioner has further stated that he has neither any personal interest nor any motive in the subject matter of the petition.
4. The petitioner has further submitted that in the State of Uttar Pradesh a number of public and religious Trusts, NGOs and Waqf Boards are established either under Charitable Endowment Act, 1890, Indian Trust Act, 1882, Societies Registration Act, 1860 or Waqf Board Act, 1995.These Trusts and Institutions are availing exemption from payment of income tax and drawing other benefits. He has further submitted that several Trusts, Societies, Charitable Endowments etc., have huge cash reserves and assets in their possession and these surplus funds and other wealth should be utilized for the welfare of the common people. He has further submitted that the country is facing difficult time because of COVID-19 pandemic and it is high time that the cash reserves and wealth lying unutilized with these Endowments, Trusts, NGOs, Societies and Waqfs, to be utilized for various welfare schemes sponsored by the State Government.
5. It has also been submitted that in view of the lock-down and spread of pandemic COVID-19, there has been steep decline in the economic activities in the country and various factories, businesses, shops, restaurants, cinema hall etc., have been shut down which has resulted large number of people losing their jobs and becoming unemployed. Weaker and lower middle-class strata of the State of Uttar Pradesh have suffered and are worst affected and finding it difficult to survive. Lock-down has shattered the lives of the poor.
6. It has also been submitted that the tax collection including GST have reached to the bottom level in the month of March to June 2020 and, there is no hope for revival and, if the predictions are true, the economic slowdown would not be recovered in near future. Citizens of Uttar Pradesh who had migrated for work in the States like Delhi, Maharashtra, Gujarat etc., to earn their livelihood, have returned to their homes and the State is under obligation to provide basic facilities to its citizens including shelter, food, medical facilities etc. In absence of funds with the State and in view of the steep slowdown in the economic activities, the State is not in a position to take care of its people in providing basic needs and facilities as mentioned above. The petitioner has also submitted that several Trusts claiming to be religious charitable trusts are purportedly circulating circulars in social media propagating that the Government is interfering with religious activities of Trusts and compelling the said Trusts to transfer the funds to relief work.
7. To buttress the aforesaid submission, the petitioner has relied on the circular issued by ISKON, Mumbai/Thane exhorting its followers to the extent that the Government is compelling Hindu religious Trust to transfer its funds to COVID-19 relief work in an unconstitutional manner.
8. Another Trust namely, Kabir Chauramati Mulgadi Trust, Varanasi has issued circular claiming to be a religious institution rendering honest and selfless services for the upliftment of the humanity and, the Government has shown its intention to undertake and intervene in the working of this religious trust by putting a control on its funds in a mala fide and unjustified manner.
9. Another religious Trust namely, Aadyatma Pariwar claiming to be a Jain Charitable Trust, based in Gujarat and Maharashtra, has issued circular dated 02.05.2020 in social media stating that they are not bound to transfer their funds for any purpose other than mandated in their Constitution.
10. The petitioner has further referred to the circulars issued by another Trusts namely, Dharmasangh Shiksha Mandal, Varanasi and Yaduvamsi Janta Sikshan Sansthan, Gazipur U.P.
11. The petitioner has submitted that the State must, if circumstances warrant, in public interest and even forcibly take over the surplus funds and assets of these Institutions for the Welfare of the public at large.
12. The petitioner has, however, not impleaded any Trust, Religious Institution or Society as respondent in this petition.
13. Article 25 of the Constitution of India guarantees freedom of conscience andfree profession, practice and propagation of religion subject to public order, morality and health and to the other provisions of Part III of the Constitution.
?Morality? under Article 25(1) of the Constitution of India means Constitutional Morality. Morality under Article 25(1) of the Constitution of India as subject, is governed by fundamental constitutional principles of justice, liberty, equality, dignity and fraternity combined with secularism, and not by popular opinions or social/mainstream conceptions which keep on changing. Values of constitutional morality are a non-derogable entitlement. The Court must deny protection to practices which detract from constitutional vision of justice, liberty, dignity and equality irrespective of source from which they claim legitimacy, even if based on religion text, if such practices are contrary to constitutional morality (Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1).
14. Article 26 of the Constitution of India guarantees freedom to manage religious affairs subject to public order, morality and health.
15. Article 27 of the Constitution of India guarantees freedom as to payment of taxes for promotion of any particular religion.
It would be apt to reproduce Articles 25 to 27 of the Constitution of India for the purpose of deciding this writ petition hereunder:-
?25. Freedom of conscience and free profession, practice and propagation of religion (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
26. Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
27. Freedom as to payment of taxes for promotion of any particular religion No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religions denomination.?
16. The right to profess, practice and propagate religion includes all acts done in furtherance of thought, belief, faith and worship subject to restrictions delineated under Article 25(1) of the Constitution itself. The Supreme Court in the case of Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1has held that right to profess, practice and propagate religion includes all acts done in furtherance of thought, belief, faith and worship as guaranteed under Article 25(1) of the Constitution of India subject to the condition that they do not violate constitutional morality or other provisions of Part III of the Constitution.
17. The Supreme Court in the case of Arjun Gopal v. Union of India, (2019) 13 SCC 523 has held that if a particular religious practice is threatening the health and lives of people, such practice is not entitled to protection under Article 25 of the Constitution of India. The Constitution has provided balancing provision under Article 25 of the Constitution and balancing can be done by allowing the practice subject to those conditions which ensure nil or negligible effect on public health.
18. It was also held by the Supreme Court in the case of Rev. Stainislaus v. State of M.P., (1977) 1 SCC 677 that Article 25(1) of the Constitution giving right to propagate one's religion, does not grant right to convert other person to one's own religion, but to transmit or spread one's religion by an exposition of its tenets.
19. In Sarika v. Shri Mahakaleshwar Mandir Committee, (2018) 17 SCC 112, the Supreme Court has held that the Court does not have jurisdiction to interfere with religious practices andPujastobeperformed intemples.
20. The Supreme Court in the case of Shayara Bano v. Union of India, (2017) 9 SCC 1 has held that practice of triple talaq or talaq-e-biddat is unconstitutional under Articles 14 and 15 of the Constitution of India. This form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. It has been further held that merely because a practice has continued for long, that by itself cannot make it valid, if it has been expressly declared to be impermissible and illegal and hence is not protected under Article 25 of the Constitution of India.
21. In Sarika v. Shri Mahakaleshwar Mandir Committee' case (supra), it has been held that the Government has constitutional obligation to invest fund for protection and preservation of not only ancient monuments and structures including temples of archaeological and historical importance, but also of sanctum sanctorum as well as deity of spiritual importance. The Government is required to sanction fund for providing basic amenities to pilgrims and proper arrangements for shelter places, maintenance of law and order etc., at the time of Melas and other festivals. It has been further held that secularism is part of basic structure of the Constitution, inheres respect for all religion. Religion is a matter of faith and is not necessarily theistic. Right to freedom of religion is not absolute but subject to equality, liberty, personal freedom as guaranteed in Part III of the Constitution of India and constitutional morality as held in Sabrimala Temple?s case(supra).
22. Article 26 gives freedom to manage religious affairs, subject to public order, morality and health, every religious denomination or any section thereof to establish institutions for religious and charitable purpose, to manage its own affairs in matters of religion, to own and acquire movable and immovable property and to administer such property in accordance with law. The Supreme Court in the case ofPannalal Bansilal Pitti & Ors. Etc vs State Of Andhra Pradesh & Anr : (1996) 2 SCC 498 has held that administration of religious institutions and endowments is a secular function which can be regulated by legislation.
23. In view of the aforesaid, by law the Government can take over the administration of the religious institutions and endowments by enacting a legislation. Right to property is no longer a fundamental right but it is a constitutional right as provided under Article 300-A of the Constitution of India. Under Article 300-A of the Constitution of India, no person shall be deprived of his property except by authority of law. Under the schemes of the Constitution, religious freedom is guaranteed under Articles 25 to 27 of the Constitution of India subject to other provisions of Part III of the Constitution.
24. Administration of the religious institutions and endowments is a secular function which can be regulated by legislation. The State can regulate the administration of religious institution and endowments by enacting legislation and not otherwise. Further, right to property is a constitutional right and a person cannot be deprived of his right without payment of adequate compensation as provided under Article 300-A of the Constitution of India.
25. The petitioner in this writ petition is asking this Court to direct the State and Union to enact law for taking over the properties of the religious institution and endowments for welfare of the State.
26. Under the Constitution, sovereign functions consisting of legislature, administration and dispensation of justice, have been assigned to three branches of the Government i.e. Legislature, Executive and Judiciary. There is no strict separation of powers and, there is some overlapping, but one organ cannot overtake the power and function of the other organ. Indian Constitution, unlike Constitution of United States of America and Australia, does not have express provision of separation of powers. However, the structure provided in our Constitution leaves no manner of doubt that the doctrine of separation of powers runs through the Indian Constitution. Separation of power as a basic feature of the Constitution and an essential constituent of the rule of law have been recognized in several judgments. The doctrine of separation of powers is, though, not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the several provisions of the Constitution. The Supreme Court in the case of State of Tamil Nadu vs State of Kerala: (2014) 12 SCC 696 in para 126.1 to 126.7 has summarized in brief the constitutional principles in the context of Indian Constitution relating to separation of powers between the legislature, executive and judiciary as under:-
"126.1. Even without express provision of the separation of powers, the doctrine of separation of powers is an entrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the scheme of Indian Constitution. Constitution has made demarcation, without drawing formal lines between the three organs?legislature, executive and judiciary. In that sense, even in the absence of express provision for separation of powers, the separation of powers between the legislature, executive and judiciary is not different from the Constitutions of the countries which contain express provision for separation of powers.
126.2. Independence of courts from the executive and legislature is fundamental to the rule of law and one of the basic tenets of Indian Constitution. Separation of judicial power is a significant constitutional principle under the Constitution of India.
126.3. Separation of powers between three organs?the legislature, executive and judiciary?is also nothing but a consequence of principles of equality enshrined in Article 14 of the Constitution of India. Accordingly, breach of separation of judicial power may amount to negation of equality under Article 14. Stated thus, a legislation can be invalidated on the basis of breach of the separation of powers since such breach is negation of equality under Article 14 of the Constitution.
126.4. The superior judiciary (High Courts and Supreme Court) is empowered by the Constitution to declare a law made by the legislature (Parliament and State Legislatures) void if it is found to have transgressed the constitutional limitations or if it infringed the rights enshrined in Part III of the Constitution.
126.5. The doctrine of separation of powers applies to the final judgments of the courts. The legislature cannot declare any decision of a court of law to be void or of no effect. It can, however, pass an amending Act to remedy the defects pointed out by a court of law or on coming to know of it aliunde. In other words, a court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances.
126.6. If the legislature has the power over the subject-matter and competence to make a validating law, it can at any time make such a validating law and make it retrospective. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation law it removes the defect which the courts had found in the existing law.
126.7. The law enacted by the legislature may apparently seem to be within its competence but yet in substance if it is shown as an attempt to interfere with the judicial process, such law may be invalidated being in breach of doctrine of separation of powers. In such situation, the legal effect of the law on a judgment or a judicial proceeding must be examined closely, having regard to legislative prescription or direction. The questions to be asked are:
(i) Does the legislative prescription or legislative direction interfere with the judicial functions?
(ii) Is the legislation targeted at the decided case or whether impugned law requires its application to a case already finally decided?
(iii) What are the terms of law; the issues with which it deals and the nature of the judgment that has attained finality?
If the answer to Questions (i) and (ii) is in the affirmative and the consideration of aspects noted in Question (iii) sufficiently establishes that the impugned law interferes with the judicial functions, the Court may declare the law unconstitutional."
27. It is not expected from the Court to direct the legislature to enact a particular law because the Court feels so. A policy decision is to be taken by the executive branch of the Government and the legislature has to enact the law. The Court has to interpret the law and decide its validity on constitutional principles. The Court cannot formulate a policy or direct the legislature to enact law for this purpose. The petitioner, in essence, has asked the Court to perform executive and legislative functions of the State. This is not the role of the Court and, therefore, we find that this petition is wholly misconceived and is liable to be dismissed.
28. This writ petition is thus, dismissed. No costs.
Order Date :- 27.8.2020 prateek