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G. Ramanikumar, President, State Legal Cell, Bharathiya Janatha Party Vs. State of Tamil Nadu, Rep. by Commissioner and Secretary to Govt., Education Department and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtChennai High Court
Decided On
Case NumberW.P. Nos. 39044, 39060 and 39173 of 2002 and WP. MP. Nos. 58246, 58260, 58434 and 58470 of 2002
Judge
Reported in(2007)6MLJ366
ActsTamil Nadu Recognised Private Schools (Regulation) Act, 1973 - Sections 29; Tamil Nadu Private Colleges (Regulation) Act, 1976 - Sections 25; Tamil Nadu Prohibition of Forcible Conversion of Religion (Repeal) Act, 2006; Tamil Nadu Educational Rules - Rule 77; Tamil Nadu Prohibition of Forcible Conversion of Religion Ordinance, 2002; Constitution of India - Articles 25, 25(1), 25(2), 26, 29, 30 and 30(1)
AppellantG. Ramanikumar, President, State Legal Cell, Bharathiya Janatha Party;g. Krishna, State Joint Secret
RespondentState of Tamil Nadu, Rep. by Commissioner and Secretary to Govt., Education Department and ors.;stat
Appellant AdvocateT.V. Krishnamachari, Adv. in WP. 39044/2002, ;K. Kannan, Adv. in WP. 39060/2002, ;K. Vaidayanathan, Adv. in WP. 39173/2002, ;C. Lakshmi Narain, Adv. in WP. 39205/2002 and Party-in-Person in WP. 39332/
Respondent AdvocateV. Viswanathan, AGP for Respondent Nos. 1 to 3 and ;S.J. Jagadev, Adv. for Respondent No. 7 in WP. 39044/2002
DispositionPetition dismissed
Cases ReferredCollege Society v. State of Gujarat
Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. sections 5a & 4; [p. sathasivam, m.e.n. patrudu & s. manikumar, jj] land acquisition (tamil nadu) rules, rule 4 time limit for filing objections held, time limit prescribed under section 5-a for filing objections cannot be further enlarged by form b notice issued under rule 4. authorities were directed to modify form b. sections 5a (2); [ hearing of objectors - held, it is mandatory and making a further enquiry by the collector is discretionary. if the objectors have not filed any objection with8in 30 days but come forward with oral objection, even then, the collector must hear. the hearing is mandatory.....resolution allegedly made by the respondents 4 to 7 in declaring one day closure of all christian minority educational institutions in tamil nadu. all that he had done was after seeing the newspaper reports, he had sent a telegram, a copy of which is produced before this court through his advocate, asking the official respondents to intervene and prevent illegal closure of educational institutions either on 24.10.2002 or on any other date and thereby to exercise their statutory powers.4. when the said writ petition no. 39044 of 2002 came up for admission on 23.10.2002. strangely, on the same day, w.p.no. 39060 of 2002 was filed by the state joint secretary of the student wing of the same political group, viz., akhil bharathiya vidayarthi parishad, seeking for the same relief. w.p. no......
Judgment:
ORDER

K. Chandru, J.

1. Sometimes, politics makes strange bedfellows. In this batch of five writ petitions, except in one case, four were filed by persons / organisations having same political outlook and are birds of same feathers.

2. The first writ petition (W.P.No. 39044 of 2002) is filed by the President of the State legal Cell of the Bharathiya Janatha Party, Tamil Nadu, for a declaration that the closure of all educational institutions run by the Christian minorities in the State on 24.10.2002 as illegal and unconstitutional and consequently, to direct the official respondents, viz., respondents 1 to 3, to do all that is necessary to give effect to the declaration, if any, made by this Court.

3. In support of the writ petition, the petitioner had not produced any authenticated copy of the resolution allegedly made by the respondents 4 to 7 in declaring one day closure of all Christian Minority Educational Institutions in Tamil Nadu. All that he had done was after seeing the newspaper reports, he had sent a telegram, a copy of which is produced before this Court through his Advocate, asking the official respondents to intervene and prevent illegal closure of educational institutions either on 24.10.2002 or on any other date and thereby to exercise their statutory powers.

4. When the said writ petition No. 39044 of 2002 came up for admission on 23.10.2002. Strangely, on the same day, W.P.No. 39060 of 2002 was filed by the State Joint Secretary of the Student Wing of the same political group, viz., Akhil Bharathiya Vidayarthi Parishad, seeking for the same relief. W.P. No. 39205 of 2002 was also filed by the State Co-ordinator for Hindu Organisations in Tamil Nadu, that too, on the same day for more or less similar relief. But he has not made any Management of the Christian Minority Educational Schools as a party to the writ petition and rest contented by making the State alone as a party. W.P.No. 39173 of 2002 was filed by one individual claiming to be an industrialist and educationalist with the very same prayer. He has also enclosed a letter dated 20.10.2002 written to the official respondent seeking for prohibition of the closure call given by the Christian Minority Educational Institutions. However, he had also not made anyone of the Management of Christian Minority Educational Schools, who were involved in the protest as a party to the writ petition. Apart from this, a letter dated 18.10.2002 written by a parent from Coimbatore was also treated as a writ petition and posted along with the batch. Though in his letter, he has not made any particular respondent and sought for a direction to the Chief Secretary of the Government of Tamil Nadu, the Registry has shown respondents 4 to 9 as parties to the writ petition.

5. At the time of admission of the writ petitions, viz., on 23.10.2002, there was hardly a day left for the closure call given by the Christian Minority Educational Institutions. On behalf of the State, the learned Advocate General produced a letter dated 23.10.2002, which was also extracted by this Court in the order dated 23.10.2002 passed in the Miscellaneous Petition being W.P.M.P.No. 58246 of 2002 filed along with the W.P.No. 39044 of 2002, which reads thus:

With reference to your letter cited, I am to state that the School Education and Higher Education Departments propose to instruct the concerned education institutions through the respective Heads of Departments that it will not be legal to keep the institutions closed on 24.10.2002 and that appropriate action will be taken to effect cut in the aid payable and also seek explanation for declaring holiday without prior permission.

6. Since the petitioners have pressed into service the legal obligation on the part of the Christian Minority Educational Institutions, attention was drawn to Section 29 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 as well as Section 25 of the Tamil Nadu Private Colleges (Regulation) Act, 1976. A Division Bench of this Court correctly found that those two provisions are not applicable as it is not a case of permanent closure. Further, Rule 77 of the Tamil Nadu Educational Rules was also referred to and it was held that it was not a holiday and it is only a protest. The Court merely observed that no student, who is studying in the Minority Institution, regardless of religion, shall be involved in this kind of protest and they need not be dragged into any kind of controversies either religious or political and they will be spared only for the purpose of developmental activities. Therefore, in the absence of any interim order, the protest of the Christian Minority Educational Institutions took place on 24.10.2002 as announced by them. Subsequently, neither the petitioners filed any affidavit before this Court stating that there was any violation of any provision of law or that the institutions have not kept up the spirit behind the interim order passed by this Court. It was also not brought to the notice of this Court that whether the students belonging to the Non-Christian faith were involved in any form of protest.

7. It was informed to this Court that the Christian Minority Educational Institutions made a substitute working day on 28.10.2002 and thereby prevented any hardship to the students studying in their institutions and also showed their bonafide in not disrupting any academic activities. It is in the light of these developments, the present writ petitions have been posted for final hearing.

8. We have heard the Learned Counsel appearing for the parties and have perused the records.

9. As can be seen, the provocation for the call for a token protest of a day's closure for all Educational Institutions run by the Christian Minority Educational Institutions was the enactment of Tamil Nadu Ordinance No. 9/2002, which is called as Tamil Nadu Prohibition of Forcible Conversion of Religion Ordinance, 2002. The explanatory statement appended to the Ordinance gives the object of the bringing the Ordinance. This was perceived by the Minority Religious groups as an affront to their religious rights guaranteed under Article 25 of the Constitution of India, which made it as a fundamental right to all persons to have freedom of conscience and the right to freely to profess and propagate religion. As can be seen from the averments made in several affidavits that the writ petitioners were supporters of the Ordinance and were not for in any form of protest against the said Ordinance. Subsequent to the enactment of the Ordinance, there was several newspaper reports written both by protagonists and by antagonists of the Ordinance, which were also filed in the typed set, expressing their views in public.

10. Before going into the merits of the case, what was important was the subsequent development with reference to the Ordinance. The said Ordinance was made into an Act of the legislature by Tamil Nadu Act 56 of 2002 and also it received the assent of the Governor of Tamil Nadu on 02.12.2002 and the same was brought into retrospective effect from 05.10.2002. Subsequently, as any issue of this nature takes political twist and turns, the very authors of the Ordinance and subsequent Act, may be due to strong political opinion, withdrew the said enactment by an Ordinance, which was brought into effect on 18.6.2004. While the authors of the legislation themselves have gone back in continuing the statute, it is the petitioners, who are like 'Casablanca' who stood on a burning deck in order to obey his father's command, are still persisting on going ahead with the present writ petitions and are seeking for an order.

11. Learned Counsels appearing for the petitioners also strenuously contended that notwithstanding the withdrawal of the legislation, the Christian Minority Educational Institutions should be told that on no account, they should close down their Educational Institutions as it will affect number of Non-Christian children studying in the said schools. The matter did not rest therein and subsequent to the election to the State Assembly, once again the Tamil Nadu legislature saw the repeal of the said Act by Tamil Nadu Act 10 of 2006, viz., Tamil Nadu Prohibition of Forcible Conversion of Religion (Repeal) Act, 2006 which repealed the Tamil Nadu Act 56 of 2002 and set at rest any kind of doubt about the existence of the said law.

12. this Court therefore suggested that nothing survived in the writ petitions and the petitioners may think of withdrawing the writ petitions. But the Learned Counsels appearing for the petitioners insisted for a decision of this Court and also made submissions that notwithstanding the fact that the Christian Minority Educational Institutions which called for a token protest by closure of their institutions on 24.10.2002 (subsequently compensating it by working on 28.10.2002), must be told that in future, they should not close down their institutions by way of any protest. When asked about the legal obligation on such institutions, the petitioners were not able to cite any provision of law under which the Government can issue any directions to the Minority Educational Institutions so as to prevent them from registering their protest including by calling for a day's closure as a token form of protest.

13. Mr. T.V. Krishnamachari, Learned Counsel appearing for the petitioner in the first writ petition, viz., W.P.No. 39044 of 2002, brought to the notice of this Court the decision reported in : 1977CriLJ551 [Rev. Stainislaus v. State of Madhya Pradesh] and stated that the State was well within its powers to promulgate the Ordinance No. 9 of 2002 and in the decision cited, the Supreme Court had upheld a similar legislation enacted by the Madhya Pradesh State.

14. The debate on the question 'conversion' was not new to this country. Even in the late 1920's national leaders like Mahatma Gandhi and Dr.B.R. Ambedkar have debated over this issue. Dr. Ambedkar began this discussion by referring to the 'International Fellowship' which was held in 1928. In this fellowship representatives of different faiths met each other. Mahatma Gandhi was also present in this conference. According to Dr Ambedkar, it was Mahatma Gandhi who raised the issue of conversion in relation to the work of Christian missionaries. After this conference Mahatma Gandhi's opposition to the Christian missionaries' preaching and people getting converted to Christianity is well-known. He particularly objected to the spreading of the Christian Gospel among the untouchables. His antagonism to Christian missionaries and the conversion of untouchables to Christianity was based on certain propositions, which according to Dr Ambedkar were enunciated by him in quite unmistakable term. Dr Ambedkar selected several propositions to sum up Mahatma Gandhi's position. The one such proposition was:

I do maintain...that the vast masses of Harijans and for that matter, of Indian humanity, cannot understand the presentation of Christianity, and that, generally speaking, conversion, wherever it has taken place, has not been a spiritual act in any sense of the trm. They are conversions of convenience. They (the Harijans) can no more distinguish between the relative merits (words omitted?) than can a cow. Harijans have no mind, no intelligence, no sense of difference between God and no-God.' [See Dr. Babasaheb Ambedkar: Writings and Speeches, vol.5, Bombay, Education Department, Government of Maharashtra, 1990 (Page 446]

His final observations in this regard is found in page 450 of the same volume which is as follows:

It is difficult to understand why Mr. Gandhi argues that services rendered by the missionaries are baits or temptations. Why is it not possible to believe that these services by missionaries indicate that service to suffering humanity is for Christian an essential requirement of their religion?....

No body will deny to Mr. Gandhi the right to save the Untouchables for Hinduism. But in that case he should have frankly told Missions 'stop your work, we want now to save the Untouchables, and ourselves. Give us a chance.! It is pity that he should not have adopted this honest mode of dealing with the menace of the Missionaries. Whatever anybody may say I have no doubt, all the Untouchables, whether they are converts or not, will argue that Mr. Gandhi has been grossly unjust to Christian Missions....

This attitude of Mr. Gandhi need not deter either the missionaries or the Untouchables. Christianity has come to stay in India and, unless the Hindu in their zeal for nationalism misuse their political, social and economic power to suppress it, will live and grow in numbers and influence for good.

15. As was seen earlier, since the Tamil Nadu legislation is no longer in the statute book, we are not called upon to decide the validity or otherwise of the said legislation and we refused to be drawn into any such theoretical or academic exercise on the said matter.

16. Thereafter, the Learned Counsel brought to the notice of this Court the decision of the Kerala High Court reported in : AIR1997Ker291 [Bharat Kumar K. Palicha and Anr. v. State of Kerala and Ors.] wherein a Full Bench of the Kerala High Court held that no political party has right to call for a bandh and held in paragraph 13 of the judgment, which is as follows:

Para 13: ... We cannot also ignore the increasing frequency in the calling, holding and enforcing of the bundhs in the State and the destruction of public and private property. In the face of this reality, we think that when we consider the impact of a bundh on the freedom of a citizen, we are not merely theorising but are only taking note of what happens around us when a bundh is called and a citizen attempts either to defy it or seeks to ignore it. However, it was further held in paragraph 14, which is as follows:

Para 14: ... It maybe true that the political parties and organisers may have a right to call for non co-operation or to call for a general strike as a form of protest against what they believe to be either an erroneous policy or exploitation. But when exercise of such a right infracts the fundamental right of another citizen who is equally entitled to exercise his rights, the question is whether the right of the political party extends to right of violating the right of another citizen..Moreover, nothing stands in the way of the political parties calling for a general strike or hartal unaccompanied by express or implied threat of violence to enforce it.

17. The said decision was taken on appeal to the Supreme Court and the decision of the Supreme Court is reported in AIR 1998 SC 184 [Communist Party of India (M) v. Bharat Kumar and Ors.] where the Supreme Court in paragraph 3 of its judgment, while approving the decision of the Kerala Full Bench, observed as follows:.We may also observe that the High Court has drawn a very appropriate distinction between a 'Bandh' on the one hand and a call for general strike or 'Hartal' on the other. We are in agreement with the view taken by the High Court.

18. We do not know as to how these two judgments can support the case of the petitioners. Further, one can take judicial notice that many political parties including that of the petitioners, even after the said judgment, had called for several bandhs and general strikes all over the country on many issues which, according to them, had vitally affected the interests of general public.

19. Thereafter, Learned Counsel appearing for the petitioners drew the attention of this Court to the judgment of the Supreme Court reported in : [1987]2SCR223 [Shri Sachidanand Pandey and Anr. v. The State of West Bengal and Ors.] and contended that the writ petitions are maintainable and the Court should grant relief as prayed for by them. But, however, it will be relevant to quote judgment of Justice Khalid, who gave supporting judgment, which is found in paragraph 60 and the same is extracted below:

Para 60: It is only when Courts are apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially this Court, should leave aside procedural shackles and. hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to none in extending. help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self imposed restraint on public interest litigants.

20. It is interesting to note that the Supreme Court which dealt with a Public Interest Litigation to prohibit the lawyers' strike vide its decision reported in : [2002]SUPP5SCR186 [Ex-Capt. Harish Uppal v. Union of India and Anr.], while holding that the lawyers have no right to go on strike or to give a call for boycott, the Court finally held in paragraph 35 of the judgment as follows:

It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before advocates decide to absent themselves from court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar.

It must be noted that the judgment of the Full Bench of the Kerala High Court, which was subsequently confirmed by the Supreme Court, was also referred to with approval in this decision.

21. When that is the case for the lawyers, we do not know as to how there could be a different yardstick for the other sections of the society especially when the Minority Educational Institutions enjoyed the protection under Article 30(1) of the Constitution of India when their right to administer the Educational institutions of their choice has become a fundamental right enshrined in Part III of the Constitution of India can be deprived of their right to protest. While dealing with the religious right of the Aided Private Minority Institution, a Bench consisting of 11 Judges of the Supreme Court in its decision reported in : AIR2003SC355 [T.M.A. Pai Foundation v. State of Karnataka], in paragraphs 82 to 84 dealt with the extent of their rights guaranteed under Articles 25 and 26 of the Constitution of India, which are as follows:

Para 82: Article 25 gives to all persons the freedom of conscience and the right to freely profess, practise and propagate religion. This right, however, is not absolute. The opening words of Article 25(1) make this right subject to public order, morality and health, and also to the other provisions of Part III of the Constitution. This would mean that the right given to a person under Article 25(1) can be curtailed or regulated if the exercise of that right would violate other provisions of Part III of the Constitution, or if the exercise thereof is not in consonance with public order, morality and health. The general law made by the Government contains provisions relating to public order, morality and health; these would have to be complied with, and cannot be violated by any person in exercise of his freedom of conscience or his freedom to profess, practise and propagate religion. For example, a person cannot propagate his religion in such a manner as to denigrate another religion or bring about dissatisfaction amongst people.

Para 83: Article 25(2) gives specific power to the State to make any law regulating or restricting any economic, financial, political or other secular activity, which may be associated with religious practice as provided by Sub-clause ( a ) of Article 25(2). This is a further curtailment of the right to profess, practise and propagate religion conferred on the persons under Article 25(1). Article 25(2)(a) covers only a limited area associated with religious practice, in respect of which a law can be made. A careful reading of Article 25(2)(a) indicates that it does not prevent the State from making any law in relation to the religious practice as such. The limited jurisdiction granted by Article 25(2) relates to the making of a law in relation to economic, financial, political or other secular activities associated with the religious practice.

Para 84: The freedom to manage religious affairs is provided by Article 26. This article gives the right to every religious denomination, or any section thereof, to exercise the rights that it stipulates. However, this right has to be exercised in a manner that is in conformity with public order, morality and health. Clause ( a ) of Article 26 gives a religious denomination the right to establish and maintain institutions for religious and charitable purposes. There is no dispute that the establishment of an educational institution comes within the meaning of the expression 'charitable purpose'. Therefore, while Article 25(1) grants the freedom of conscience and the right to profess, practise and propagate religion, Article 26 can be said to be complementary to it, and provides for every religious denomination, or any section thereof, to exercise the rights mentioned therein. This is because Article 26 does not deal with the right of an individual, but is confined to a religious denomination. Article 26 refers to a denomination of any religion, whether it is a majority or a minority religion, just as Article 25 refers to all persons, whether they belong to the majority or a minority religion. Article 26 gives the right to majority religious denominations, as well as to minority religious denominations, to exercise the rights contained therein.

22. Further, the Supreme Court by a larger Bench consisting of 9 Judges, vide its decision reported in : [1975]1SCR173 [Ahmedabad St. Xaviers' College Society v. State of Gujarat] dealt with the rights conferred on the minorities under Articles 29 and 30 of the Constitution of India. Justice Khanna, who wrote a supporting opinion, held that the provisions of the Constitution should be construed according to the liberal, generous and sympathetic approach and in page 781 (paragraph 89), he observed as follows:

The minorities are as much children of the soil as the majority and the approach has been to ensure that nothing should be done as might deprive the minorities of a sense of belonging, of a feeling of security, of a consciousness of equality and of the awareness that the conservation of their religion, culture, language and script as also the protection of their educational institutions is a fundamental right enshrined in the Constitution. The same generous, liberal and sympathetic approach should weigh with the courts in construing Articles 29 and 30 as marked the deliberations of the Constitution-makers in drafting those articles and making them part of the fundamental rights. The safeguarding of the interest of the minorities amongst sections of population is as important as the protection of the interest amongst individuals of persons who are below the age of majority or are otherwise suffering from some kind of infirmity. The Constitution and the laws made by civilized nations, therefore, generally contain provisions for the protection of those interests. It can, indeed, be said to be an index of the level of civilization and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression.

23. We were also not told by the Government as to what the action they had taken pursuant to their letter dated 23.10.2002 presented before this Court at the time of admission of the writ petition, which was also referred to in the interim order dated 23.10.2002.

24. As can be seen, in none of these decisions, there is any prohibition against the action indulged by the Christian Minority Educational Institutions. We have also gone through the provisions of the T.N. Private Schools Act and the Tamil Nadu Private Colleges Act. We do not see any particular provision under which the action of the contesting respondents can be brought within so as to enable the authorities to take further action on them about the alleged violation of the statutory duty indulged by them.

25. In the light of the above, we have no hesitation to hold that the writ petitions lack in merits and the same are liable to be dismissed. Accordingly, the writ petitions shall stand dismissed. However, there will be no order as to costs. Consequently, connected Miscellaneous Petitions will also stand closed.


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