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Mrs. Yulitha Hyde and ors. Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
Overruled ByRev Stainislaus v. State of Madhya Pradesh
CourtOrissa High Court
Decided On
Case NumberO.J.C. Nos. 185, 186 and 217 of 1969
Reported inAIR1973Ori116
ActsOrissa Freedom of Religion Act, 1968 - Sections 1, 2, 3 and 4; Constitution of India - Articles 19(2) and 25(1)
AppellantMrs. Yulitha Hyde and ors.
RespondentState of Orissa and ors.
Advocates:R. Mohanty, ;R.K. Kar, ;B.B. Roy and ;R.C. Misra, Advs.
DispositionApplication allowed
Cases ReferredPushkar Mukherjee v. State of West Bengal
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....r.n. misra, j. 1. these are three applications under article 226 of the con-stitution essentially challenging the vires of the orissa freedom of religion act 2 of 1968 (hereinafter referred to as the act) and were heard analogously. this common judgment shall dispose of all these applications.2. though the main challenge is on a common stand several allegations have been made in these applications which it may be useful to briefly indicate.(a) o. j. c. no. 185 of 1969: the four petitioners here are indian citizens and are christians belonging to the roman catholic church. of them, the petitioners 2 and 4 are priests who claim to have dedicated themselves to the propagation of the catholic faith and are engaged in evangelization leading to conversion of persons belonging to other faith by.....
R.N. Misra, J.

1. These are three applications under Article 226 of the Con-stitution essentially challenging the vires of the Orissa Freedom of Religion Act 2 of 1968 (hereinafter referred to as the Act) and were heard analogously. This common judgment shall dispose of all these applications.

2. Though the main challenge is on a common stand several allegations have been made in these applications which it may be useful to briefly indicate.

(a) O. J. C. No. 185 of 1969:

The four petitioners here are Indian citizens and are Christians belonging to the Roman Catholic church. Of them, the petitioners 2 and 4 are Priests who claim to have dedicated themselves to the propagation of the Catholic faith and are engaged in evangelization leading to conversion of persons belonging to other faith by and/or through preaching exhortation. The impugned Act received assent of the Governor of Orissa on 9-1-1968 and came into force from the following day. Father Fernando and three others named in paragraph 13 of the application who are said to be catechists have been prosecuted under the Act in the Court of a Magistrate at Gunupur in four separate cases bearing Nos. G. K. Nos. 314. 311. 312 and 313 of 1968 respectively. It is claimed that the Act is ultra vires the Constitution as it infringes the fundamental rights guaranteed under Articles 19(1)(a) and 25 of the Constitution. It is also alleged that the State Legislature has no legislative competency to enact the statute in question. The petitioners have, therefore, prayed for quashing of these several criminal oases upon a declaration that the Act is ultra vires the Constitution.

(b) O. J. C. No. 186 of 1969;

This application is by three petitioners. Petitioners 1 and 2 who are Indian Citizens and also Christians belonging to the Roman Catholic church are permanent residents of Orissa. Petitioner No. 3 is the Catholic Union of India -- a Society registered under the Societies Registration Act, 1860, and petitioners 1 and 2 claim to be members of the said society. It is claimed that the main purpose of the Society is to act as the exponent of the Catholic faith, to make representations and submissions to authorities and public bodies in this country in all matters affecting catholics in India and to safeguard by all lawful means the legitimate rights and liabilities and interests of the catholic community particularly in respect of rights granted or recognised by the Constitution. The petitioner No. 2 claims that he is a priest devotedly engaged in evangelization. The relief claimed in the application is the declaration that the Act is ultra vires the Constitution beingviolative of the fundamental rights guaranteed by the Constitution and as being an Act of the State Legislature without the requisite legislative competence.

(c) O. J. C. No. 217 of 1969:

The petitioner is an Indian Christian and happens to be a professor of the Theological College at Cuttack. He is also the President of the Utkal Christian Council -- an organisation formed to aid and assist the Protestant Churches, Christian organisations and Christians of Orissa of the Protestant Christian faith in particular. The relief asked for in the writ application is one of declaration that the Act is ultra vires the Constitution.

Thus the main contention raised in these three applications is that the Act is ultra vires the Constitution. The attack is on the following grounds.

(a) The State Legislature has no legislative competency to legislate on matters covered by the Act. end

(b) The Act infringes the fundamental right guaranteed under Article 25 of the Constitution.

3. No return has been made to the rule nisi issued by this Court in any of these applications. While in spite of time being granted for filing of affidavits in opposition in the first two cases no steps have been taken; in the last case, on 8-9-1969, counsel on behalf of the State of Orissa stated that no counter affidavit was intended to be filed.

We should have, therefore, ordinarily assumed all the allegations of fact raised in the applications to be correct and proceeded straightway to deal with the questions of law canvassed at the hearing. We, however, think it appropriate to examine in brief the correctness of the allegations that propagation and propagation by adopting some of the methods which have been made offences under the Act in particular are a part of the Christian religion. We have been referred to the Scriptures as the ultimate basis for such contention.

4. It has been alleged that ordinarily religious instructions covering a period of six months to a year are first imparted to those non-Christians who intend to become Christians by conversion. After such instructions are imparted care is taken to reach satisfaction on behalf of the Church that the 'conversion-seeker' has fully understood the tenets of the faith and is therefore, fit enough to be baptised (so far as Catholics are concerned) or converted (as far as Protestants are concerned).

It has been contended that conversion to Christianity is due to all or some of the following reasons:--

(a) Christians believe that their religion is a Holy Gift and is particularlygood; instead of selfishly keeping this divine gift all to themselves, they are willingly out to share the some with all others :

(b) Christ, the Holy Father, commanded every Christian to carry His message throughout the world irrespective of race caste and/or creed. Every Christian, therefore, takes it as a mandate of his religion that he must bring non-Christians into his religion,

(c) Though Christians do not deny salvation for non-Christians yet they believe that facilities available in their religion make the attainment of salvation smoother and more convenient and surer;

(d) Christians believe in the Fatherhood of God and Brotherhood of all men and, as such, they consider that all men are not only born equal but arc entitled to live as equals in the kingdom of God;

(e) Christians believe that conversion takes place by extension of God's grace which is obtainable only by daily prayers devoted for the purpose; many non-Christians are attracted towards this religion on account of the Christian belief in God and life after death :

(f) Christians have a very high spiritual standard and aspire for maintaining also a dignified standard of living. They believe that those who receive the grace of God have a divine mandate to allow others in His kingdom who have not received such grace to share it Christians believe that satisfaction of the basic physical wants creates a wholesome basis for effectiveness of religion. Therefore, attempt is made to improve the economic condition of the 'conversion-seekers' as an Initial process of conversion;

(g) The exemplary life led by Christian Priests and Nuns and their dedicated life of renunciation evokes admiration and attracts many into the fold of Christianity;

(h) People of the depressed classes in Society feel that they are hated and despised by the well-placed section of people. People of the depressed classes embrace Christianity voluntarily as an escape.

As methods of this propagation of religion often mild threats are held out The preacher says; 'You (non-Christians) shall go to hell' or 'You shall not obtain salvation'. The preacher also often says; 'Wrath of God shall come down upon you' or 'God will be displeased with you.' Dealing with Blessings of obedience and Results of disobedience in the Old Testament it has been said:

'.........Blessed shall you be in thecity, and blessed shall you be in the field. Blessed shall be the fruit of your body, and the fruit of your ground, and thefruit of your beasts, the Increase of your cattle and the young of your flock .........And the Lord will abound you in prosperity in the fruit of your body and in the fruit of your cattle and in the fruit of your ground ........... The Lord willopen to you His good treasury the heavens, to give the rain of your land in its season and to bless all the work of your hands .........

But if you will not obey the voice of the Lord your God or be careful to do all his commandments ............ TheLord will send upon you curses, confusion, and frustration, in all that you undertake to do. until you are destroyed and perish quickly ............'

It has been said elsewhere in the Holy Bible:

'To Him ell the prophets bear witness that every one who believes in Him receives forgiveness of sins through His name.

From the Sixteen Documents of Vatican II it has been quoted during argument; The Lord commanded;

'Go. therefore, and make disciples of all nations baptizing them in the name of the Father and of the son and of the Holy Spirit; ......... Go into the wholeworld, preach the gospel to every creature. He who believes and is baptized shall be saved; but he who does not believe, shall be condemned.' And again:

'Let Christians labour and collaborate with others in rightly regulating the affairs of social and economic life. With special care, let them devote themselves to the education of children and young people by means of different kinds of schools which should be considered not only as the most exultant means of forming and developing Christian youth but also as a valuable public service especially in the developing nations, working toward the uplifting of human dignity, and toward better living conditions. Furthermore let them take part in the striving of these peoples who. waging war on famine ignorance and disease, are struggling to better their way of life and to secure peace in the world. In this activity, the faithful should be eager to offer prudent aid to projects sponsored by public and private organisations, by Governments, by various Christian communities or even by non-Christian communities.' And again:

'Closely united with men in their life and work. Christ's disciples hope to render to others true witness of Christ, and to work for their salvation even where they are not able to announce Christ fully. For they are not seeking a mere material progress and prosperity for men. but are promoting their dignityand brotherly union, teaching those religious and moral truths which Christ illumined with High Light; and in this way, they are gradually opening up a fuller approach to God. Thus they help men to attain to salvation by love for God and neighbour, and the mystery of Christ begins to shine forth, in which there appears the new man, created according to God. and in which the charity of God is revealed ......... Whenever Godopens a door of speech for proclaiming the mystery of Christ there is announced to ell men with confidence and constancy the living God, and he whom he has sent for the salvation of all, Jesus Christ in order that non-Christians, when the Holy Spirit opens their heart may believe and be purely converted to the Lord, that they may cleave sincerely to Him Who, being the 'way the truth and the life', fulfils ell their spiritual expectations, and even infinitely surpasses them.' Counsel for the several petitioners have freely quoted from several Christian Scriptures of undoubted authority to show that propagating religion with a view to its spreading is a part of religious duty for every Christian and, therefore, must be considered as a part of the religion. Learned Government Advocate does not dispute this assertion of fact. We, therefore, proceed on the basis that it is the religious duty of every Christian to propagate his religion,

5. The term 'religion', as in the American Constitution also has not been defined in our Constitution. Waite, C. J. in Reynolds v. United States. (1879) 98 US 145, observed:

'The word 'religion' is not defined in the Constitution. We must go elsewhere, therefore, to ascertain the meaning and nowhere more appropriately we think, than to the history of the tunes in the midst of which the provision (1st amendment) was adopted. The precise point of the enquiry is, what is the religious freedom which has been guaranteed?'

In course of the discussion, the learned Chief Justice further said:

'In the Preamble of this Act religious freedom is defined: and after a recital that to suffer a civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy which at once destroys all religious liberty', it is declared that 'it is time enough for the rightful purpose of civil Government for its officers to interfere when principles break out into overt acts against peace and good order.' In these two sentences is found that true distinction between what properly belongs to the church and what to the State.'

In Commr. of H. R. E. v. L. T. Swamiar (commonly known as Sirur Math case), AIR 1954 SC 282, at p. 290, Mukherji, J. as his Lordship then was, stated:--

'What then are matters of religion? The word 'religion' has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition. In an American case -- vide Davis v. Beason. (1888) 133 US 333 at p. 342, it has been said:

'that the term 'religion' has reference to one's views of his relation to his creator and to the obligations they impose of reverence for his Being and character and of obedience to his will. It is often confounded with 'cults' of form or worship of a particular sect. but is distinguishable from the latter.' We do not think that the above definition can be regarded as either precise or adequate. Articles 25 and 26 of our Constitution are based for the most part upon Article 44(2) of the Constitution of Eire and we have creat doubt whether a definition of 'religion' as given above could have been in the minds of our Constitution-makers when they framed the Constitution.

Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Budhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct, to say that religion is nothing else but a doctrine or belief. A religion may not only lav down a code of ethical rules for its followers to accept, it may prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.'

His Lordship quoted with approval the weighty observations of Latham, C. J. of the High Court of Australia in Adelaide Co. v. The Commonwealth, 67 CLR 116, running thus:

'It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should not interfere with religious 'opinions', it nevertheless may deal as it pleases with any 'acts' which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of Section 116 (of the Australian Constitution Act). The section refers in express terms to the 'exercise' of religion, end therefore it isintended to protect from the operation of any commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion.'

'These observations apply fully to the protection of religion as guaranteed by the Indian Constitution.'

While referring to several later decisions of the Supreme Court, counsel before us candidly stated that none has differed from the weighty observations indicated here. We, therefore, do not propose to refer to the other cases. 6. Article 25 guarantees 'freedom of conscience' and 'the right freely to profess, practise and propagate religion'. Dealing with the scope of the guarantee under this Article, their Lordships of the Supreme Court in Durgah Committee v. Hussain Ali, AIR 1961 SC 1402, at page 1414 stated :

'Under Article 25(1), subject to public order, morality and health and to the other provisions of Part III, all persons are equally entitled to freedom of conscience and their right freely to profess, practise and propagate religion. This freedom guarantees to every citizen not only the right to entertain such religious beliefs as may appeal to his conscience but also affords him the right to exhibit his belief in his conduct by such outward acts as may appear to him proper in order to spread his ideas for the benefit of others.'

The true scope of the guarantee under Article 25(1) of the Constitution, therefore, must be taken to extend to propagate religion and as a necessary corollary of this proposition, conversion into one's own religion has to be included in the right so far as a Christian citizen is concerned.

The right guaranteed under Article 25(1), however, is not absolute, but has been expressly subject to 'public order', 'morality' and 'health' and 'to the other provisions of Part III of the Constitution', We must, therefore, now advert to the Act to find out whether its provisions which are alleged to infringe the right under this Article are covered by the limitations provided therein or do indeed infringe the right.

7. Sections 2, 3 and 4 are the material provisions of the Act with reference to which the vires thereof is attacked. These are those provisions:

'2: Definitions:

In this Act unless the context otherwise requires:--

(a) 'conversion' means renouncing one religion and adopting another;

(b) 'force' shall include & show of force or a threat of injury of any kindincluding threat of divine displeasure or social ex-communication;

(c) 'fraud' shall include misrepresentation or any other fraudulent contrivance;

(d) 'inducement' shall include the offer of any gift or gratification either in cash or in kind, and shall also include the grant of any benefit, either pecuniary or otherwise; and

(e) xx xx xx 3. Prohibition of forcible conversion:No person shall convert or attemptto convert, either directly or otherwise,any person from one religious faith toanother by the use of force or by inducement or by any fraudulent means norshall any person abet any such conversion. .4. Punishment for contravention of the provisions of Section 3:--

Any person contravening the provisions contained in Section 3 shall, without prejudice to any civil liability, be punishable with imprisonment of either description which may extend to one year or with fine which may extend to five thousand rupees or with both;

Provided that in case the offence is committed in respect of a minor, a woman or a person belonging to the Scheduled Castes or Scheduled Tribes, the punishment shall be imprisonment to the extent of two years and fine upto ten thousand rupees.'

Section 5 makes any offence under the Act cognizable and Section 6 makes prosecution conditional upon sanction of the prescribed authority.

Counsel for the petitioners have conceded during argument that Christianity does not approve of 'force' or 'fraud' as methods of conversion. It has been indicated in the written note submitted by counsel that any conversion obtained by such process is void. Objection, however, is raised to the language used in the definition of 'fraud' and 'force'. It is stated that each of these two words, apart from being commonplace, has a known connotation having been used in the Penal Code for over a hundred years. Section 349 of the Code defines 'force' while Section 25 defines 'fraudulently'. 'Inducement' has been referred to in several sections of the Code. (e. g. Sections 366A and 415. I. P. C.). These words have received authoritative treatment in several judgments of Courts. If the impugned Act intended to prohibit the use of 'force' or 'fraud' as methods of conversion, mere reference to the words should have been enough. On the other hand, by giving extended meaning to the words, interference with the Christian religion has been caused.

It is true that 'force' as defined in the Code refers to physical force while the definition under the Act extends thescope. 'Threat of divine displeasure' or 'social ex-communication' are said to constitute the extension of the concept The petitioners have contended that people from the down trodden sections of society ordinarily take to Christianity as an escape. It is in this background that the legitimacy of the purpose -- the extension of the definition falls to be determined. Threat of divine displeasure numbs the mental faculty; more so of an undeveloped mind and the actions of such person thereafter are not free and according to conscience. Social ex-communication is a serious malady and forces the ex-communicated to live a hazardous life. The extended meaning given to the word 'force' does not seek to import anything very foreign into the word inasmuch as the two acts which are now included in the definition do fit into the essential concept of the word. Merely because the Penal Code confines the meaning of the word to bodily force, in our opinion, cannot justify the acceptance of the contention advanced before us. Similar is our view with regard to the term 'fraud'. The contention that there is vagueness in the term 'misrepresentation' does not also impress us. As we have already said these are not the normal methods adopted for bringing about conversion. Again they are tainted and we see no justification in the contention that they cannot be prohibited. The intention of the law is to regulate conduct and we see nothing wrong with e law which excludes these as not approved conduct.

While we accept that these are sometimes used as methods of proselytizing and may be taken as a part of Christian religion, yet the restriction is covered by the limitation subiect to which the right is guaranteed under Article 25(1).

We shall now deal with the argument regarding the definition of 'inducement'. The attack is mainly on the ground that it is too widely stated and even invoking the blessings of the Lord or to say that 'by His grace your soul shall be elevated' may come within the mischief of the term. Learned Government Advocate while agreeing that even holding out that an intangible benefit is to come may answer the definition, contends that the intention of the Legislature is not to transcend the ordinary concept of the term. We are of the view that the definition is capable of covering some of the methods of proselytizing and though the concept of inducement can be a matter referable to 'morality', the wide definition is indeed open to reasonable objection on the ground that it surpasses the field of morality.

8. We shall now proceed to examine the legislative competence of theOrissa State Legislature to enact the impugned Statute. Learned Government Advocate has contended that the impugned Act is clearly referable to entry 1 of List II or Entry 1 of List III and as such the legislation is competent. Counsel for the petitioners. however, contend that there is no specific entry in Schedule VII of the Constitution dealing with the topic of 'religion' and. as such entry 97 of List I of Schedule VII alone must apply.Legislative powers have been distributed under the Constitution between theUnion and the States. Yet our Constitution is centripetal in character. Article 248 provides:--

'Parliament has exclusive power to make any law with respect to any matter not enumerated in the concurrent List orState List.'

Entry 97 of List I reiterates the provision by saying:

'Any other matter not enumerated in List II or List III including any tax not mentioned in either of these Lists.' Their Lordships of the Supreme Court in the Second Gift Tax Officer v. D. H. Hazareth, AIR 1970 SC 999, have said:-- 'Therefore to find out whether a piece of legislation falls within any entry its true nature and character must be in respect to that particular entry. The entries must of course receive a large and liberal interpretation because the few words of the entry are intended to confer vast and plenary powers. If, however, no entry in the three Lists covers it, then it must be regarded as a matter not enumerated in any of the three lists. Then it belongs exclusively to Parliament under Entry 97 of the Union List as a topic of legislation.'

We have, therefore, to examine whether legislative power has been vested in the State Legislature under any of the entries in List II in respect of this subiect-matter or if it is a matter pertaining to an entry in List III. The two entries which have been placed before us by learned Government Advocate as alternates are as follows:

List II. Entry I, provides:--

'Public order (but not including the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power).' The 1st Entry of List III runs thus: 'Criminal law, including all matters Included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power.'

9. Before adverting to the two Entries in List II and List III of Sche-dule VII of the Constitution, in order to find out whether the Act is ultra vires the State Legislature or not. It is proper that we indicate in brief the law to be applied for determining such a question.

In the Privy Purse case. (AIR 1971 SC 530) at page 577 of the Reporter, it has been said:

'But a constitutional provision will not be interpreted in the attitude of a lexicographer, with one eye on the provision and the other on the lexicon. The meaning of a word or expression used in the Constitution often is coloured by context in which it occurs; the simpler and more common the word or expression, the more meanings and shades of meanings it has. It is the duty of the Court to determine in what particular meaning and particular shade of meaning the word or expression was used by the Constitution-makers and in discharging the duty the Court will take into account the context in which it occurs, the obiect to serve which it was used, its collocation, the general congruity with the concept or obiect it was intended to articulate, and a host of other considerations. Above all the Court will avoid repugnancy with accepted norms of justice and reason.'

Dealing with distribution of legislative power, their Lordships of the Supreme Court in A. S. Krishna v. Madras State, AIR 1957 SC 297, have said:

'It must be remembered that we are construing a federal Constitution. It is the essence of such a Constitution that there should be a distribution of the legislative powers of the Federation between the Centre and the Provinces. The scheme of distribution has varied with different Constitutions, but even when the Constitution enumerates elaborately the topics on which the Centre and the States could legislate, some overlapping on the fields of legislation is inevitable. The British North American Act, 1867. which established a Federal Constitution for Canada, enumerated in Sections 91 and 92 the topics on which the Dominion and the Provinces could respectively legislate. Notwithstanding that the lists were framed so as to be fairly full and comprehensive, it was not long before it was found that the topics enumerated in the two sections overlapped and the Privy Council had time and again to pass on the Constitutionality of the laws made by the Dominion and the Provincial legislatures. It was in this situation that the Privy Council evolved the doctrine that for deciding whether an impugned legislation was intra vires, regard must be had to its pith end substance. That is to say, if a Statute is found in substance to relate to a topic within the competence of the legislature, it should be held to be intravires even though it might incidentally trench on topics not within the legislative competence.'

Their Lordships quoted with approval the test used by Lord Porter in Prafulla Kumar v. Bank of Commerce Ltd.. AIR 1947 PC 60, where dealing with the Question of the extent of the invasion by the Provincial Legislation into the Federal fields, the Law Lord said:--

'No doubt it is an important matter not as their Lordships think, because the validity of an Act, can be determined by discriminating degrees of invasion, but for the purpose of determining what is the pith and substance of the impugned Act. Its provisions may advance so far into the Federal territory as to show that its true nature is not concerned with provincial matters, but the question is not has it trespassed more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is not money lending but promissory notes or banking? Once that question is determined the Act falls on one or the other side of the line and can be seen as valid or invalid according to its true content.'

Keeping in view these tests, we shall now proceed to examine whether, in its pith and substance, the Act is a Statute relating to the topic of 'Public Order' has in entry I of List II) or 'Criminal Law' has in entry I of List III).

10. Counsel for both sides have referred to several decisions of undoubted authority to indicate the meaning the term 'Public Order' comprehends. In Lakhi Das v. Province of Bihar, AIR 1960 SC 59 the corresponding entry (re: Public Order) under the Government of India Act, 1935, came up for consideration. Speaking for the Court. Mukherji, J. has his Lordship then was) spoke thus:

'The expression 'public order' with which item No. 1 begins is, in our opinion a most comprehensive term and it clearly indicates the scope and ambit of the subject in respect of which powers of legislation are given to the Province. Maintenance of public order within a Province is primarily the concern of that Province and subject to certain exceptions which involve the use of His Majesty's forces in aid of civil power, the Provincial Legislature is given plenary authority to legislate on all matters which relate to or are necessary for maintenance of public order.'

In Romesh Thappar v. State of Madras. AIR 1950 SC 124. Pataniali Sastri J. has his Lordship then was) delivered the iudfiment of the maiority saving:

'Now 'public order' is an expression of wide connotation and signifies that state of tranquillity prevailing among the members of a political society as a resultof the internal regulations by the Government which they have instituted.'

Counsel for the petitioners referred us to several other later decisions of the Supreme Court where with reference to the term 'public order' judgments have been delivered. (Supdt. Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633; Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740; Pushkar Mukherjee v. State of West Bengal, AIR 1970 SC 852) but they are cases where the term 'public order' as occurring in Article 19(2) of the Constitution was dealt with. In our opinion, consideration which governs the interpretation of the phrase in Article 19(2) of the Constitution cannot be imported into construction of 'public order' as a legislative head of power.

The. Act essentially deals with the subject-matter of 'religion' and its provisions do not indeed relate to 'public order'. Learned Government advocate has experienced some amount of embarrassment during the hearing of these applications in the absence of a firm disclosure upon affidavit as to which entry the State looks upto to justify the competence of the Act. The adoption of alternate entries in his argument is indicative of the uncertain situation. We do not find any basis to hold that the Act can be held to be covered by the topic of 'Public Order' in Entry I of List II.

11. Now coming to the other entry in the Concurrent List the topic is 'Criminal Law.' The entry clearly brings into its fold the Indian Penal Code as it stood at the commencement of the Constitution, but excludes specifically offences with respect to matters specified in List I or List II and use of military power in aid of civil power. The second entry in List III is 'Criminal Procedure' including all matters in the Code of Criminal Procedure at the commencement of the Constitution. When both these entries are looked at the true import of the first entry becomes clear. The inclusive nature of the provision has the effect of enlarging of the scope. We must hold that the entry covers a field larger than the Indian Penal Code. 'Criminal Law' has no definition in the Constitution nor is a definition of the term available in any Statute. The term must, therefore bear its ordinary meaning. Law dealing with crimes is criminal law. As the Law Lexicon states 'it relates to crimes and their punishment. It is that body of law, whether dealing with 'mala prohibita or mala in se', the infraction of which is a crime or an offence punishable by a criminal proceeding. 'Punishment is certainly within the domain of criminal law and learned Government Advocate, therefore, contends that the Act is nothing but a penal statute and is thus an Act relat-able to the entry. According to him, the entry extends to the creation of new offences by legislation (AIR 1939 FC 58) and thus the Act is intra vires the State Legislature.

An analysis of the Act, however, has left no doubt in our mind that the pith and substance of the statute is not creation of offences and therefore, it does not relate to 'criminal law'. The real topic is religion and indeed not criminal law. Again religion is not a matter specified in List II but must be taken to be covered only in List I. Therefore, even in terms of the entry, the State Legislature shall not have legislative jurisdiction.

In our view, therefore, the matter relating to which the Act has been enacted is not enumerated either in List II or List III and comes under entry 97 of List I. The State Legislature has, therefore, no power to make the law in question.

12. Our conclusions, therefore, are :

(1) Article 25(1) guarantees propagation of religion and conversion is a part of the Christian religion.

(2) Prohibition of conversion by 'force' or by 'fraud' as defined by the Act would be covered by the limitation subject to which the right is guaranteed under Article 25(1).

(3) The definition of the term 'inducement' is vague and many proselytizing activities may be covered by the definition and the restriction in Article 25(1) cannot be said to cover the wide definition.

(4) The State Legislature has no power to enact the impugned legislation which in pith and substance is a law relating to religion. Entry No. 1 of either Last II or List III does not authorise the impugned legislation.

(5) Entry 97 of List I applies.

13. On the conclusions, each of these three applications must succeeed. We declare that the Act is ultra vires the Constitution and direct the issue of a writ of mandamus to the opposite-party-State Government not to give effect to the Act. The four criminal cases pending before the Magistrate at Gunupur are hereby quashed.

We make no order as to costs.

Panda, J.

14. I agree.

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