A. Facts of the
Case and the Impugned Provision
The appellant was removed
from service for proved misconduct of contracting another marriage during
existence of the first marriage, without the permission of the Government, which
was termed to be a violation of Rule 29(1) of the U.P. Government Servant
Conduct Rules, 1956.
B. Appellant’s
Contention
Firstly, it was contended that by the appellant
that he had duly divorced his first wife, before performing the second
marriage. It was appellant’s case that he committed a mistake of not getting
the name of his first wife corrected in the service book. The appellant further
filed an affidavit of his first wife that the divorce had in fact been taken
place in the year 1999 before his second marriage in the year 2005.
Secondly, the appellant has raised the question
of validity of the impugned Conduct Rules as being violative of Article 25 of
the Constitution.
C. Relevant
Provision
Article 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.
D. Court’s
Decision
On the first issue, the Court
while rejecting the submission of the appellant, placed its reliance on the
statement made by the appellant in enquiry proceedings initiated by the
National Human Rights Commission that both
his wives were living comfortably with him [i]; on the counter affidavit filed by the first wife denying any divorce
having taken place [ii]; the appellant’s service record still mentioning the
first wife as the wife [iii] and absence of any intimation in any form on
record
that the appellant had divorced
the first wife [iv]. With respect to the submission of the first wife’s
affidavit, the Court placed its reliance on the statement of the first wife
that the appellant took her signatures on blank papers and manipulated the affidavit
which was relied upon in support of his writ petition.
On
the second issue, the
Court again reiterated the decades long jurisprudence where the Court has held
that what is protected under Articles 25 and 26 is the religious practice
forming integral and essential part of the religion. So,
those practices that are merely
religious or sanctioned by the religion, but are not mandated to be
compulsorily practiced, are within the sphere of valid legislation.[1]
The Court relied on the
judgment in the case of Javed v. State of
Haryana,[2]
where the Court had dealt with the challenge made to certain provisions of the
Haryana Panchayati Raj Act 1994 that had disqualified a person from being a
Sarpanch (amongst other offices) or continue as such if such person has more than 2 living children. One of the
submissions was that the personal law of Muslims permits performance of
marriages with 4 women, obviously for the purpose of procreating children and
any restriction thereon would be violative of right to freedom of religion
enshrined in Article 25 of the Constitution.
The Court firstly, held that Article 25 protects
an essential and integral part of practice of a religion. Then, it proceeded by holding that Article 25 protects the
religious faith and not a practice which may run counter to public order,
health or morality. Referring to the judgment in Sarla Mudgal and Ors. v. UOI,[3]
where it had noted that in the United States of America the practice of polygamy
is held to be injurious to ‘public
morals’. Then, the Court proceeded to decide whether polygamy is an integral
part of the religion, which it found to be not in negative.[4]
E. Conclusion
The judgment is congruent to its
jurisprudence on Article 25. The “community exception” under Article 25 (2) (b)
has been a subject matter of debate, where the Courts have been forced to sit
harmonize the freedom to practice religious belief of a person vis-à-vis the need
for a social reform and indeed, the latter essentially leads to a judgment that
is often hurting one particular set of people (maybe strict book followers or
maybe fundamentalists). However, in my opinion the approach of the Supreme
Court has always maintained a modicum of certainty while deciding such issues
and acceptably balances both the ends of the considerations under Article 25.
In fact, in the case of State
of Bombay v. Narasu Appa Mali,[5]
the constitutional validity of the Bombay Prevention of Hindu Bigamous
Marriages Act 1946 was challenged on the ground of violation of Article 14, 15
and 25 of the Constitution. The Court found it difficult to accept the proposition that polygamy is an integral part
of Hindu religion though Hindu religions recognizes the necessity of a son
for religious efficacy and spiritual salvation. The Court in categorical terms,
while rejecting the challenge, stated:
“The right
of the State of legislate on questions relating to marriage cannot be
disputed. Marriage is undoubtedly a
social institution an institution in which the State is vitally interested…If,
therefore, the State of Bombay compels Hindus to become monogamists, it is a measure of social reform, and if it is
a measure of social reform then the State is empowered to legislate with regard
to social reform under Article 25(2)(b)
notwithstanding the fact that it may interfere with the right of a citizen
freely to profess, practise and propagate religion.”
These
observations coupled with the non- protection given to the non- essential part
of a religion under Article 25, in effect justify the reasoning of the Court in
the present case.
[1] See decisions in Dr. M. Ismail Faruqui and Ors. v. Union of
India and Ors., AIR 1995 SC 605; Mohd. Hanif Quareshi and Ors. v. The State
of Bihar, [1959] 1 SCR 629; The State of Bombay v. Narasu Appa Mali, AIR 1952
Bom 84; Badruddin v. Aisha Begam 1957 ALJ 300, the Allahabad High Court.
[2] (2003) 8 SCC 369.
[3] 1995 CriLJ 2926.
[4] (2003) 8 SCC 369, ¶ 44.
[5] AIR 1952 Bom 84.
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