DOCUMENT SOURCE: http://indiankanoon.org/
Madras High Court
S.P.Muthu Raman vs The Chief Secretary on 30 November, 2011]
Madras High Court
S.P.Muthu Raman vs The Chief Secretary on 30 November, 2011]
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30/11/2011
CORAM
THE HONOURABLE MR.JUSTICE R.SUDHAKAR
and
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
Writ Petition (MD)No.11444 of 2011
and
M.P.(MD)No.1 of 2011
S.P.Muthu Raman ... Petitioner
vs.
1.The Chief Secretary,
Government of Tamil Nadu,
Secretariat,
Fort St. George,
Chennai.
2.The Deputy Secretary to Government,
The Public (Miscellaneous) Department,
Secretariat,
Fort St. George,
Chennai.
3.The Secretary,
Personnel and Administrative
Reforms Department,
Secretariat,
Fort St. George,
Chennai. .
. Respondents
Writ Petition filed under Article 226 of the Constitution of India praying
to issue a Writ of Certiorarified Mandamus, calling for the records pertaining
to Lr.No.33570/Miscellaneous/2011, dated 31.01.2011 of the second respondent and
quash the same and consequently forbearing the respondents from conducting all
sorts of religious activities within the precincts of government offices.
!
For Petitioner ... Mr.B.K.Rajendran
^For Respondents ... Mr.K.Mahendran,
Special Government Pleader.
-----
ORDER
R.SUDHAKAR,J., The Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records pertaining to Lr.No.33570/Miscellaneous/2011, dated 31.01.2011 of the second respondent and quash the same and consequently, forbearing the respondents from conducting all sorts of religious activities within the precincts of government offices.
2. The present writ petition filed in public interest is a sequel to earlier Writ Petition No.3298 of 2010 decided on 17.3.2010 by a Division Bench of this Court which writ petition was also filed in public interest.
3. The brief facts which are necessary for disposal of the writ petition are as follows:- The issue raised by the petitioner which is contained in the representation dated 9.9.2010 addressed to the Secretary to Government is as follows. There are two Hindu Festivals, viz., Saraswathy Pooja and Ayutha Pooja. These two festivals are being celebrated in Government Departments every year. The preamble of the Constitution describes India as a secular State. In such circumstances, the conduct of Pooja and Festival as above renders a secular state questionable. The faith of the people in the secular State will be shattered. Therefore, in order to safeguard the secular State as set out in the Preamble of the Constitution, all Government and the Government related offices should be directed not to perform such Pooja or Festivals. This representation is marked to the Chief Secretary of the State as well. The above representation was replied curtly by the Deputy Secretary to Government stating that on the issue pointed out in the representation given on 9.9.2010, there has been no complaint whatsoever from any quarters. Therefore, petitioner's request cannot be considered. Consequently, the present writ petition has been filed to quash the above stated reply letter and to forebear the respondents from conducting all religious activities within the precincts of government offices. In support of the plea made in the writ petition, petitioner relied upon the G.O.Ms.No.426 Personnel and Administrative Reforms (PER-A) Department dated 13.12.1993 and the earlier order of this Court in W.P.No.3298 of 2010 dated 17.3.2010.
4. The issue raised by the petitioner relates to regulation of office work in Government Departments. Originally a manual was published called as "District Office Manual" and presently named it as the "Tamil Nadu Government Office Manual". In the G.O.Ms.No.426 Personnel and Administrative Reforms (PER- A) Department dated 13.12.1993, the following addition has been made to the Tamil Nadu Government Office Manual:-
"AMENDMENT In the said Manual under Part I - III General discipline etc., after para 9, the following para shall be added, namely,-
Para 9A. Practice of worship by Government staff at Office premises:-
"Head of Department/District Collector/Head of office shall ensure that no construction of any new structure for religious worship or prayer within the office campus, or enlargement or modification of any existing structure for similar purpose is permitted."
The above said Government Order was considered by the Division Bench earlier, in W.P.No.3298 of 2010 and in its order dated 17.3.2010, the Division Bench held in paragraphs 4 and 5 as follows:-
"4. The issuance of G.O.Ms.No.426, Personnel and Administrative Reforms Department dated 13.12.1993, is not in dispute. In fact, the petitioner sent a communication to the 1st respondent on 02.02.2010 and a reply has been forwarded by the Under Secretary to the Government, Personnel and Administrative Reforms Department, on 26.02.2010 admitting the issuance of G.O.Ms.No.426, dated 13.12.1993. The said communication also makes it clear that as per the said G.O., no new structures for any religion should be permitted inside any Government Offices and that any kind of religious structure is prohibited inside the Government Offices.
5. When such a specific Government Order having been issued by the State Government, it is the responsibility of the State to ensure that such prohibition made under the said G.O., is implemented in letter and spirit. We, therefore, state that the respondents should take all necessary steps to implement the specific directions issued in G.O.Ms.No.426, Personnel Reforms Department dated 13.12.1993, and take all possible steps for maintaining a communal harmony in the Government Offices, without giving room for any hitch from any quarters.
5. With the above observation this writ petition stands disposed of. No order as to costs."
5. Pursuant to the order passed in W.P.No.3298 dated 17.3.2010, the Secretary to Government issued Circular in Letter No.15844/A/2010-1 dated 22.04.2010 which reads as follows:-
"3. In view of the direction of the Madurai Bench of Madras High Court, all Heads of departments are requested to follow the above instructions scrupulously and it is the responsibility of the Head of Department/District Collector/Head of Office to ensure that the prohibition made under the said Government Order is implemented in letter and spirit. The Heads of departments are also requested to instruct all the Sub-ordinate Offices under their control to follow the instructions issued in G.O.Ms.N.426, Personnel and Administrative Reforms (Per-A) Department, dated 13.12.1993 without fail."
It, therefore, follows that the Government has taken effective steps to implement the G.O.Ms.No.426 Personnel and Administrative Reforms (Per-A) Department, dated 13.12.1993 and the order of this Court promptly.
6. In spite of the earlier order of the Division Bench referred to above and the letter issued by the Secretary to Government on 22.4.2010, the petitioner in this case has once again submitted a representation on 9.9.2010 objecting to conduct of Saraswathy Pooja and Ayutha Pooja in Government Offices, for which a reply dated 31.1.2011 has been given by the Deputy Secretary to Government and that reply is under challenge.
7. The Counsel for the petitioner reiterated his stand taken in the representation and referred to the G.O.Ms.No.426 dated 13.12.1993 and the earlier order of this Court to further his plea for the relief sought for.
8. This Court while considering the plea of the petitioner, is constrained to consider the necessity for filing the present writ petition. It has to be seen if there is a cause of action for the petitioner to file this writ petition in spite of an order in the previous writ petition mentioned above.
(1) On the first question as to whether there is a cause of action for filing this writ petition, the answer clearly is "no". The facts clearly reveal that no cause of action arose for the petitioner to file the writ petition. The representation dated 9.9.2010 opposing a particular pooja/festival is based on a preconceived notation, because on that date, the so-called Poojas could not have been conducted and petitioner cannot imagine what will happen in the future and there is no material to perceive so. Further, petitioner has not specifically stated in which Government Office, the above said Pooja was or is celebrated by the Government. Therefore, the representation by it nature is very vague. It is unfortunate that the Deputy Secretary to the Government has given a reply stating that there is no complaint. It makes it appears as if the pooja/festival is being conducted by the Government and there is no complaint or problem so far. This has caused the confusion. At the outset, the Chief Secretary to the Government should inform the officer concerned that such a reply ought not to have been given. The State in this case, admittedly, does not perform Saraswathy Pooja or Ayutha Pooja and there is no material to plead such a case. Further, on those dates, recognizing the faith of peoples and the custom in vogue from time immemorial, the Government declares the two days as holidays, if it falls on a weekly working day so as to enable the individuals to celebrate or perform the pooja by themselves. Therefore, the question of the State being the part of the pooja or festival does not stand to reason. Therefore, the cause of action for filing the writ petition stating that Government should stop such festival in the offices is based on a misconception of fact.
(2) The Deputy Secretary to Government ought to have considered the circular/letter issued by the Secretary to Government dated 22.4.2010 which is based on the earlier order passed by the Division Bench of this Court in W.P.No.3298 of 2010 dated 17.3.2010 extracted above. In which case also Mr.S.P.Muthuraman, who is the present petitioner, is the petitioner and the relief is almost the same. When an order has already been passed by a Division Bench of this Court considering the G.O.Ms.No.426 dated 13.12.1993 and a Circular/Letter dated 22.4.2010 has also been issued, there is no need for the petitioner to give a representation on 9.9.2010 once again. The Deputy Secretary to Government not realising the earlier position has given a reply stating that there is no complaint. Factually, it is correct, as the Government does not conduct any festival or pooja. Hence, there can be no complaint.
9. Petitioner's plea in the present writ petition is based on G.O.Ms.No.426 dated 13.12.1993 and the earlier order passed by the Division Bench of this Court in W.P.No.3298 of 2010 dated 17.3.2010 referred to above. The same issue cannot be agitated once over. In any event, the petitioner appears to have confused himself by the wordings in G.O.Ms.N.426 dated 13.12.1993. The G.O.Ms.No.426 dated 13.12.1993 directs the Head of Department, District Collector and Head of Office to ensure that no construction of any new superstructure for religious worship or prayer within the office campus is permitted. Further, enlargement or modification of any existing structure for similar purpose is also not permitted. The emphasis is on construction of new structure for religious worship or prayer within the office campus. So long as there is no new construction in the office campus for the purpose of religious worship or prayer and so long as there is no enlargement or modification of any existing structure for religious worship or prayer, the petitioner is not entitled to make an issue thereon. The addition by way of G.O.Ms.No.426 dated 13.12.1993, to the Tamil Nadu Government Office Manual is that the place of Government Office should not be converted into the place of religious worship or prayer. It does not in any way impinge upon the citizens freedom of conscience and the right freely to profess and practice religion.
10. Article 25 of the Constitution reads as follows:-
"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."
11. While Article 25(1) of the Constitution recognizes the citizen's right to freedom of conscience and the right freely to profess, practise and propagate religion subject to public order, morality and health, Article 25(2) on the other hand gives a right to the State to make any law to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice. The Constitution recognizes individual liberty, giving the State the right to regulate or restrict by law the said right. The right given is subject to reasonable restriction and on this touchstone we will have to see if the petitioner's complaint of breach of secularism has any basis.
12. As to what is Secularism has been clarified by the Supreme Court in State of Karnataka and another - vs. - Dr.Praveen Bhai Thogadia reported in AIR 2004 Supreme Court 2081.
".... Secularism is not to be confused with communal or religious concepts of an individual or a group of persons. It means that State should have no religion of its own and no one could proclaim to make the State have one such an endeavour to create a theocratic State. Persons belonging to different religions live throughout the length and breadth of the country. Each person whatever be his religion must get an assurance from the State that he has the protection of law freely to profess, practice and propagate his religion and freedom of conscience. Otherwise, the rule of law will become replaced by individual perceptions of ones own presumptuous good social order. Therefore, whenever the concerned authorities in charge of law and order find that a person's speeches or actions are likely to trigger communal antagonism and hatred resulting in fissiparous tendencies gaining foothold undermining and affecting communal harmony, prohibitory orders need necessarily to be passed, to effectively avert such untoward happenings."
"10. Our country is the world's most heterogeneous society, with rich heritage and our Constitution is committed to high ideas of socialism, secularism and the integrity of the nation. As is well known, several races have converged in this sub-continent and they carried with them their own cultures, languages, religions and customs affording positive recognition to the noble and ideal way of life - 'Unity in Diversity'. Though these diversities created problems, in early days, they were mostly solved on the basis of human approaches and harmonious reconciliation of difference, usefully and peacefully. That is how secularism has come to be treated as a part of fundamental law, and an unalignable segment of the basic structure of the country's political system. As noted in S.R.Bommai v. Union of India etc. (1994(3) SCC 1), freedom of religion is granted to all persons of India. Therefore, from the point of view of the State, religion, faith or belief of a particular person has no place and give no scope for imposition on individual citizen."
(emphasis supplied) The petitioner in this case has failed to understand the true import of secularism. The communal or religious concepts of individual or a group of person is protected by law as is the freedom of religion granted to all citizens (vide S.R.Bommai's case). It cannot be confused with the concept of secular State. The petitioner's endeavour is to curtail the right of an individual which is protected by Article 25. The petitioner's individual perception on performance of pooja or festival has no relevance insofar as the State is concerned.
13. The Apex Court in Commissioner of Police and others - vs. - Acharya Jagadishwarananda Avadhuta and another reported in (2004) 12 Supreme Court Cases 770, while considering the word "religion" as contained in Article 25 of the Constitution has extensively dealt with the term "what is religion" and what constitutes "religion and religious form". Paragraphs 85 to 87 discusses the expression "religion" as understood by various religious groups. In the present case, we will have to consider as to whether any form of pooja or worship, namely, Saraswathy "Pooja or Ayutha Pooja by an individual in the Government Office will any way offend the secular nature of our country. In para 86 the different forms of worship by different religion is highlighted thereby recognizing the freedom of religion granted to all citizen. Paragraphs 85 to 87 which is relevant reads as follows:-
"85. Religion is a social system in the name of God laying down the code of conduct for the people in society. Religion is a way of life in India and it is an unending discovery into the unknown world. People living in society have to follow some sort of religion. It is a social institution and society accepts religion in a form which it can easily practise. George Bernard Shaw stated, "There is nothing that people do not believe if only it be presented to them as science and nothing they will not disbelieve if it is presented to them as religion.": Essentially, religion is based on "faith". Some critics say that religion interferes with science and faith. They say that religion leads to the growth of blind faith, magic, sorcery, human sacrifices, etc. No doubt, the history of religion shows some indications in this direction but both science and religion believe in faith. Faith in religion influences the temperament and attitude of the thinker. Ancient civilisation viz., the Indus Valley civilisation shows faith of people in Siva Sakthi. The period of Indus Valley civilisation was fundamental religion and was as old as at least the Egyptian and Mesopotamian cultures. People worship Siva and the trishul (trident), the emblem of Siva which was engraved on several seals. People also worshipped stones, trees, animals and fire. Besides, worship of stones, trees, animals, etc., by the primitive religious tribes shows that animism viz., worship of trees, stones, animals was practised on the strong belief that they were abodes of spirits, good or evil. Modern Hinduism to some extent includes Indus Valley civilisation culture and religious faith. Lord Siva is worshipped in the form of linga. Many symbols have been used in Hindu literature. Different kinds of symbols and images have different sanctity. Baring of chest, arms and other parts of body represent the weapons of symbols of Siva. Modern Hinduism has adopted and assimilated various religious beliefs of primitive tribes and people. The process of worship has undergone various changes from time to time.
86. The expression "religion" has not been defined in the Constitution and it is incapable of specific and precise definition. Article 25 of the Constitution guarantees to every person, freedom of conscience and right freely to profess, practise and propagate religion. No doubt, this right is subject to public order related to health and morality and other provisions relating to fundamental right. Religion includes worship, faith and extends to even rituals. Belief in religion is belief in practising a particular faith, to preach and to profess it. Mode of worship is an integral part of religion. Forms and observances of religion may extend to matters of food and dress. An act done in furtherance of religion is protected. A person believing in a particular religion has to express his belief in such acts which he thinks proper and to propagate his religion. It is settled law that protection under Articles 25 and 26 of the Constitution extends guarantee for rituals and observances, ceremonies and modes of worship which form part and parcel of religion. Practice becomes part of religion only if such practice is found to be an essential and integral part. It is only those practices which are integral part of religion that are protected. What would constitute an essential part of religion or religious practice is to be determined with reference to the doctrine of a particular religion which includes practices which are regarded by the community as part and parcel of that religion. Test has to be applied by courts whether a particular religious practice is regarded by the community practising that particular practice as an integral part of the religion or not. It is also necessary to decide whether the particular practice is religious in character or not and whether the same can be regarded as an integral or essential part of religion, which has to be decided based on evidence.
87. It is not uncommon to find that those (sic) delve deep into scriptures to ascertain the character and status of a particular practice. It has been authoritatively laid down that cow sacrifice is not an obligatory overt-act for a Muslim to exhibit his religious belief. No fundamental right can be claimed to insist on slaughter of a healthy cow on Bakr Id day. Performance of "sharadha" and offering of "pinda" to ancestors are held to be an integral part of Hindu religion and religious practice. Carrying "trishul" or "trident" and "skull" by a few in a procession to be taken out by a particular community following a particular religion is by itself an integral part of religion. When persons following a particular religion carry trishul, conch or skull in a procession, they merely practise that which is part of their religion which they want to propagate by carrying symbols of their religion such as trishul, conch, etc. If the conscience of a particular community has treated a particular practice as an integral or essential part of religion, the same is protected by Articles 25 and 26 of the Constitution."
(emphasis supplied)
14. The petitioner's complaint at the first instance relating to the two poojas admittedly, are not performed by the State. As already stated, the State declares holiday on the particular date. So, the plea that the State is performing the religious festival or worship does not arise. The allegation on this score is totally misconceived. Therefore, the question is whether the prayer, pooja or worship by the individual at the office will in any way run contrary to the secular nature of the State or it will offend the G.O.Ms.No.426 dated 13.12.1993 referred to above is the issue to be considered.
15. Ayutha Pooja is referable to prayer, reverence or respect given to the objects through which an individual performs his profession or occupation. Ayutha Pooja in its real terms transcends all religion. Irrespective of religion, Ayutha Pooja is a sort of reverence shown by a cobblers, weavers, farmers, auto rickshaw drivers, rickshaw Pullers, carpenters, shop keepers, chartered accountants, advocates, doctors, officers or office staffs, house wives, drivers of all types of vehicles, etc., to the objects with which they pursue their livelihood, profession or occupation. If the individual concerned shows respect or reverence to such objects/tools, etc., it cannot be said that it offends the secular nature of the State.
16. According to free encyclopedia, the Wikipedia, the new age knowledge bank, Ayutha Pooja is "Worship of Implements" and it defines it as follows:-
"The Puja is considered a meaningful custom, which focuses specific attention to one's profession and its related tools and connotes that a divine force is working behind it to perform well and for getting the proper reward.
In the cross cultural development that has revolutionized the society, with modern science making a lasting impact on the scientific knowledge and industrial base in India, the ethos of the old religious order is retained by worship of computers and typewriters also during the ayudha Puja, in the same manner as practised in the past for weapons of warfare."
It is, therefore, clear that it is relatable to an object of one occupation or profession and religion takes an insignificant place.
17. Similarly, Saraswathy Pooja is referable to showing respect to education, knowledge, and the script. When the State has declared the day as holiday, it cannot be said that the State is propagating festivals offending secular nature. The form of worship or veneration to files and records on the close of the working day preceding the holiday for Ayutha Pooja or Saraswathy Pooja cannot be called as religious activity by the Government, affecting the secular State. In Government Offices, if an individual shows respect and reverence to the materials, books, files or records which are being handled by the individual, it will be referable to his individual freedom and there is nothing to show that it affects the secular nature of the State. Showing respect to the place of work and the objects of work will in no way offend the feeling of others or offend secularism. In other words, so long as the individual shows reverence and performs such pooja without affecting the rights of other persons/individuals and the third parties, it cannot be said that it offends the secular nature of the State. The Indian Constitution recognizes the religious right of each and every citizen, particularly, to his right to freedom of conscience and the right freely to profess, practise and propagate religion. The State advances the concept of unity in diversity. The State is empowered to regulate by law in terms of Article 25(2). The Government Order which is referred to in the present case is to ensure that a Government Office is not converted into a place of worship or prayer. It is not the case of the petitioner that a new construction is undertaken in the State Government office premises for the purpose of prayer or worship in violation of the Government Order. Petitioner also cannot state that he is offended by any individual showing respect and reverence to the objects of work, profession or occupation. It will amount to curtailing the right guaranteed under our Constitution.
18. If the petitioner's grievance is to be considered in a manner in which it is expressed, then a Hindu, a Christian or a Muslim or for that matter a person of any faith cannot pray silently or show reverence to his profession before he starts his work. A Sikh or Jain cannot show reverence to his religious Guru. If the relief sought for by the petitioner should be accepted, it is likely to cause disharmony among various religious groups as similar writ petition will be filed by one or other individual to restrain others from performing prayer of any kind or showing reverence even if it does not affect or offend others.
19. In the present case, the two poojas referred to by the petitioner cannot be termed as a religious activities in its strict sense. It is only a respect shown to the objects of one's profession or occupation. The respect shown to office file, reading materials, office utilities which are being used day-to-day by the person or the official concerned cannot be termed as offending the secular nature of the State.
20. Article 25 of the Constitution gives protection to an individual so long as such worship, prayer or reverence to the objects used in the course of his duty does not affect the working of the office of the State or that of any other individual.
21. In his poem "Where is God", one of the Greatest Freedom Fighters of our Nation and our National Poet, Mahakavi Barathiar stated that "all moving inanimate things are God, the pen is God and even the letters is God". The poem reads as follows:-
",aYfpd;w $lg;bghUs;f sidj;Je; bja;tk;;;.
vGJnfhy; bja;tkpe;j vGj;Je; bja;tk;/ "
Therefore, the reverence shown by an individual to the pen and to the office papers in his seat of office in whatever capacity he works without offending others and their official duties, cannot be said to offend the secular State.
22. Saraswathy Pooja and Ayutha Pooja is nothing but showing respect and reverence to the books of knowledge, tools of occupation, files and records which are the source of bread and butter to the particular individual. Therefore, showing respect in this regard will not amount to infringing the religious sentiments of other persons, moreso, if the prayer or reverence is by an individual done after office hours.
23. The letter of the Deputy Secretary to Government is totally irrelevant to the issue and has been issued without considering the earlier circular/letter dated 22.4.2010 issued by the Secretary to the Government based on the Division Bench Judgment in W.P.No.3298 of 2010. Therefore, this Court is not going into the veracity of the said letter/circular, as it is of no consequence.
24. In this case there is no allegation of new construction or expansion or modification for religious worship or prayer in the office premises. The relief sought for by the petitioner to restrict the individual's right to freely profess and practice religion is without any basis and without a cause of action. The present writ petition filed by the very same petitioner differently worded lacks bona fides. The respondents are not conducting any religious activity in the Government Office premises and hence the prayer is misconceived.
25. In the result, the Writ Petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
26. In the introductory paragraph of the District Office Manual, it is stated that a copy of the book will be supplied to every member of the establishment and he must make himself thoroughly conversant with the rules contained in it. A plea of ignorance will not be accepted. It further directs that the head of each section must ensure that every clerk in his section understands the rules, keeps his copy corrected upto date and hands it over to his successor at the time laying down the office. In G.O.Ms.No.514 Personnel and Administrative Reforms (Per.A) Department dated 26.12.1990, the Government directed that the District Office Manual would continue to be adopted in all Government Offices (except Secretariat where Secretariat Office Manual is applicable) with minor editorial changes. This Court is of the view that the District Office Manual should be re-named as the "Tamil Nadu Government Office Manual" and distributed to all applicable government offices. It took sometime for the Court to locate the manual as it is not available at most offices, prompting this Court to issue appropriate direction.
27. The first respondent Chief Secretary to Tamil Nadu Government is directed to take immediate steps to reprint the Tamil Nadu Government Office Manual as per the above G.O. dated 26.12.1990 with updates for use in all Government Offices. Such exercise should be done within a period of twelve weeks from the date of receipt of a copy of this order and report compliance to this Court. The Government is also directed to upload the Tamil Nadu Government Office Manual and other Manuals in the Government Website forthwith.
ts To
1.The Chief Secretary, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai.
2.The Deputy Secretary to Government, The Public (Miscellaneous) Department, Secretariat, Fort St. George, Chennai.
3.The Secretary, Personnel and Administrative Reforms Department, Secretariat, Fort St. George, Chennai.
R.SUDHAKAR,J., The Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus, calling for the records pertaining to Lr.No.33570/Miscellaneous/2011, dated 31.01.2011 of the second respondent and quash the same and consequently, forbearing the respondents from conducting all sorts of religious activities within the precincts of government offices.
2. The present writ petition filed in public interest is a sequel to earlier Writ Petition No.3298 of 2010 decided on 17.3.2010 by a Division Bench of this Court which writ petition was also filed in public interest.
3. The brief facts which are necessary for disposal of the writ petition are as follows:- The issue raised by the petitioner which is contained in the representation dated 9.9.2010 addressed to the Secretary to Government is as follows. There are two Hindu Festivals, viz., Saraswathy Pooja and Ayutha Pooja. These two festivals are being celebrated in Government Departments every year. The preamble of the Constitution describes India as a secular State. In such circumstances, the conduct of Pooja and Festival as above renders a secular state questionable. The faith of the people in the secular State will be shattered. Therefore, in order to safeguard the secular State as set out in the Preamble of the Constitution, all Government and the Government related offices should be directed not to perform such Pooja or Festivals. This representation is marked to the Chief Secretary of the State as well. The above representation was replied curtly by the Deputy Secretary to Government stating that on the issue pointed out in the representation given on 9.9.2010, there has been no complaint whatsoever from any quarters. Therefore, petitioner's request cannot be considered. Consequently, the present writ petition has been filed to quash the above stated reply letter and to forebear the respondents from conducting all religious activities within the precincts of government offices. In support of the plea made in the writ petition, petitioner relied upon the G.O.Ms.No.426 Personnel and Administrative Reforms (PER-A) Department dated 13.12.1993 and the earlier order of this Court in W.P.No.3298 of 2010 dated 17.3.2010.
4. The issue raised by the petitioner relates to regulation of office work in Government Departments. Originally a manual was published called as "District Office Manual" and presently named it as the "Tamil Nadu Government Office Manual". In the G.O.Ms.No.426 Personnel and Administrative Reforms (PER- A) Department dated 13.12.1993, the following addition has been made to the Tamil Nadu Government Office Manual:-
"AMENDMENT In the said Manual under Part I - III General discipline etc., after para 9, the following para shall be added, namely,-
Para 9A. Practice of worship by Government staff at Office premises:-
"Head of Department/District Collector/Head of office shall ensure that no construction of any new structure for religious worship or prayer within the office campus, or enlargement or modification of any existing structure for similar purpose is permitted."
The above said Government Order was considered by the Division Bench earlier, in W.P.No.3298 of 2010 and in its order dated 17.3.2010, the Division Bench held in paragraphs 4 and 5 as follows:-
"4. The issuance of G.O.Ms.No.426, Personnel and Administrative Reforms Department dated 13.12.1993, is not in dispute. In fact, the petitioner sent a communication to the 1st respondent on 02.02.2010 and a reply has been forwarded by the Under Secretary to the Government, Personnel and Administrative Reforms Department, on 26.02.2010 admitting the issuance of G.O.Ms.No.426, dated 13.12.1993. The said communication also makes it clear that as per the said G.O., no new structures for any religion should be permitted inside any Government Offices and that any kind of religious structure is prohibited inside the Government Offices.
5. When such a specific Government Order having been issued by the State Government, it is the responsibility of the State to ensure that such prohibition made under the said G.O., is implemented in letter and spirit. We, therefore, state that the respondents should take all necessary steps to implement the specific directions issued in G.O.Ms.No.426, Personnel Reforms Department dated 13.12.1993, and take all possible steps for maintaining a communal harmony in the Government Offices, without giving room for any hitch from any quarters.
5. With the above observation this writ petition stands disposed of. No order as to costs."
5. Pursuant to the order passed in W.P.No.3298 dated 17.3.2010, the Secretary to Government issued Circular in Letter No.15844/A/2010-1 dated 22.04.2010 which reads as follows:-
"3. In view of the direction of the Madurai Bench of Madras High Court, all Heads of departments are requested to follow the above instructions scrupulously and it is the responsibility of the Head of Department/District Collector/Head of Office to ensure that the prohibition made under the said Government Order is implemented in letter and spirit. The Heads of departments are also requested to instruct all the Sub-ordinate Offices under their control to follow the instructions issued in G.O.Ms.N.426, Personnel and Administrative Reforms (Per-A) Department, dated 13.12.1993 without fail."
It, therefore, follows that the Government has taken effective steps to implement the G.O.Ms.No.426 Personnel and Administrative Reforms (Per-A) Department, dated 13.12.1993 and the order of this Court promptly.
6. In spite of the earlier order of the Division Bench referred to above and the letter issued by the Secretary to Government on 22.4.2010, the petitioner in this case has once again submitted a representation on 9.9.2010 objecting to conduct of Saraswathy Pooja and Ayutha Pooja in Government Offices, for which a reply dated 31.1.2011 has been given by the Deputy Secretary to Government and that reply is under challenge.
7. The Counsel for the petitioner reiterated his stand taken in the representation and referred to the G.O.Ms.No.426 dated 13.12.1993 and the earlier order of this Court to further his plea for the relief sought for.
8. This Court while considering the plea of the petitioner, is constrained to consider the necessity for filing the present writ petition. It has to be seen if there is a cause of action for the petitioner to file this writ petition in spite of an order in the previous writ petition mentioned above.
(1) On the first question as to whether there is a cause of action for filing this writ petition, the answer clearly is "no". The facts clearly reveal that no cause of action arose for the petitioner to file the writ petition. The representation dated 9.9.2010 opposing a particular pooja/festival is based on a preconceived notation, because on that date, the so-called Poojas could not have been conducted and petitioner cannot imagine what will happen in the future and there is no material to perceive so. Further, petitioner has not specifically stated in which Government Office, the above said Pooja was or is celebrated by the Government. Therefore, the representation by it nature is very vague. It is unfortunate that the Deputy Secretary to the Government has given a reply stating that there is no complaint. It makes it appears as if the pooja/festival is being conducted by the Government and there is no complaint or problem so far. This has caused the confusion. At the outset, the Chief Secretary to the Government should inform the officer concerned that such a reply ought not to have been given. The State in this case, admittedly, does not perform Saraswathy Pooja or Ayutha Pooja and there is no material to plead such a case. Further, on those dates, recognizing the faith of peoples and the custom in vogue from time immemorial, the Government declares the two days as holidays, if it falls on a weekly working day so as to enable the individuals to celebrate or perform the pooja by themselves. Therefore, the question of the State being the part of the pooja or festival does not stand to reason. Therefore, the cause of action for filing the writ petition stating that Government should stop such festival in the offices is based on a misconception of fact.
(2) The Deputy Secretary to Government ought to have considered the circular/letter issued by the Secretary to Government dated 22.4.2010 which is based on the earlier order passed by the Division Bench of this Court in W.P.No.3298 of 2010 dated 17.3.2010 extracted above. In which case also Mr.S.P.Muthuraman, who is the present petitioner, is the petitioner and the relief is almost the same. When an order has already been passed by a Division Bench of this Court considering the G.O.Ms.No.426 dated 13.12.1993 and a Circular/Letter dated 22.4.2010 has also been issued, there is no need for the petitioner to give a representation on 9.9.2010 once again. The Deputy Secretary to Government not realising the earlier position has given a reply stating that there is no complaint. Factually, it is correct, as the Government does not conduct any festival or pooja. Hence, there can be no complaint.
9. Petitioner's plea in the present writ petition is based on G.O.Ms.No.426 dated 13.12.1993 and the earlier order passed by the Division Bench of this Court in W.P.No.3298 of 2010 dated 17.3.2010 referred to above. The same issue cannot be agitated once over. In any event, the petitioner appears to have confused himself by the wordings in G.O.Ms.N.426 dated 13.12.1993. The G.O.Ms.No.426 dated 13.12.1993 directs the Head of Department, District Collector and Head of Office to ensure that no construction of any new superstructure for religious worship or prayer within the office campus is permitted. Further, enlargement or modification of any existing structure for similar purpose is also not permitted. The emphasis is on construction of new structure for religious worship or prayer within the office campus. So long as there is no new construction in the office campus for the purpose of religious worship or prayer and so long as there is no enlargement or modification of any existing structure for religious worship or prayer, the petitioner is not entitled to make an issue thereon. The addition by way of G.O.Ms.No.426 dated 13.12.1993, to the Tamil Nadu Government Office Manual is that the place of Government Office should not be converted into the place of religious worship or prayer. It does not in any way impinge upon the citizens freedom of conscience and the right freely to profess and practice religion.
10. Article 25 of the Constitution reads as follows:-
"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."
11. While Article 25(1) of the Constitution recognizes the citizen's right to freedom of conscience and the right freely to profess, practise and propagate religion subject to public order, morality and health, Article 25(2) on the other hand gives a right to the State to make any law to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice. The Constitution recognizes individual liberty, giving the State the right to regulate or restrict by law the said right. The right given is subject to reasonable restriction and on this touchstone we will have to see if the petitioner's complaint of breach of secularism has any basis.
12. As to what is Secularism has been clarified by the Supreme Court in State of Karnataka and another - vs. - Dr.Praveen Bhai Thogadia reported in AIR 2004 Supreme Court 2081.
".... Secularism is not to be confused with communal or religious concepts of an individual or a group of persons. It means that State should have no religion of its own and no one could proclaim to make the State have one such an endeavour to create a theocratic State. Persons belonging to different religions live throughout the length and breadth of the country. Each person whatever be his religion must get an assurance from the State that he has the protection of law freely to profess, practice and propagate his religion and freedom of conscience. Otherwise, the rule of law will become replaced by individual perceptions of ones own presumptuous good social order. Therefore, whenever the concerned authorities in charge of law and order find that a person's speeches or actions are likely to trigger communal antagonism and hatred resulting in fissiparous tendencies gaining foothold undermining and affecting communal harmony, prohibitory orders need necessarily to be passed, to effectively avert such untoward happenings."
"10. Our country is the world's most heterogeneous society, with rich heritage and our Constitution is committed to high ideas of socialism, secularism and the integrity of the nation. As is well known, several races have converged in this sub-continent and they carried with them their own cultures, languages, religions and customs affording positive recognition to the noble and ideal way of life - 'Unity in Diversity'. Though these diversities created problems, in early days, they were mostly solved on the basis of human approaches and harmonious reconciliation of difference, usefully and peacefully. That is how secularism has come to be treated as a part of fundamental law, and an unalignable segment of the basic structure of the country's political system. As noted in S.R.Bommai v. Union of India etc. (1994(3) SCC 1), freedom of religion is granted to all persons of India. Therefore, from the point of view of the State, religion, faith or belief of a particular person has no place and give no scope for imposition on individual citizen."
(emphasis supplied) The petitioner in this case has failed to understand the true import of secularism. The communal or religious concepts of individual or a group of person is protected by law as is the freedom of religion granted to all citizens (vide S.R.Bommai's case). It cannot be confused with the concept of secular State. The petitioner's endeavour is to curtail the right of an individual which is protected by Article 25. The petitioner's individual perception on performance of pooja or festival has no relevance insofar as the State is concerned.
13. The Apex Court in Commissioner of Police and others - vs. - Acharya Jagadishwarananda Avadhuta and another reported in (2004) 12 Supreme Court Cases 770, while considering the word "religion" as contained in Article 25 of the Constitution has extensively dealt with the term "what is religion" and what constitutes "religion and religious form". Paragraphs 85 to 87 discusses the expression "religion" as understood by various religious groups. In the present case, we will have to consider as to whether any form of pooja or worship, namely, Saraswathy "Pooja or Ayutha Pooja by an individual in the Government Office will any way offend the secular nature of our country. In para 86 the different forms of worship by different religion is highlighted thereby recognizing the freedom of religion granted to all citizen. Paragraphs 85 to 87 which is relevant reads as follows:-
"85. Religion is a social system in the name of God laying down the code of conduct for the people in society. Religion is a way of life in India and it is an unending discovery into the unknown world. People living in society have to follow some sort of religion. It is a social institution and society accepts religion in a form which it can easily practise. George Bernard Shaw stated, "There is nothing that people do not believe if only it be presented to them as science and nothing they will not disbelieve if it is presented to them as religion.": Essentially, religion is based on "faith". Some critics say that religion interferes with science and faith. They say that religion leads to the growth of blind faith, magic, sorcery, human sacrifices, etc. No doubt, the history of religion shows some indications in this direction but both science and religion believe in faith. Faith in religion influences the temperament and attitude of the thinker. Ancient civilisation viz., the Indus Valley civilisation shows faith of people in Siva Sakthi. The period of Indus Valley civilisation was fundamental religion and was as old as at least the Egyptian and Mesopotamian cultures. People worship Siva and the trishul (trident), the emblem of Siva which was engraved on several seals. People also worshipped stones, trees, animals and fire. Besides, worship of stones, trees, animals, etc., by the primitive religious tribes shows that animism viz., worship of trees, stones, animals was practised on the strong belief that they were abodes of spirits, good or evil. Modern Hinduism to some extent includes Indus Valley civilisation culture and religious faith. Lord Siva is worshipped in the form of linga. Many symbols have been used in Hindu literature. Different kinds of symbols and images have different sanctity. Baring of chest, arms and other parts of body represent the weapons of symbols of Siva. Modern Hinduism has adopted and assimilated various religious beliefs of primitive tribes and people. The process of worship has undergone various changes from time to time.
86. The expression "religion" has not been defined in the Constitution and it is incapable of specific and precise definition. Article 25 of the Constitution guarantees to every person, freedom of conscience and right freely to profess, practise and propagate religion. No doubt, this right is subject to public order related to health and morality and other provisions relating to fundamental right. Religion includes worship, faith and extends to even rituals. Belief in religion is belief in practising a particular faith, to preach and to profess it. Mode of worship is an integral part of religion. Forms and observances of religion may extend to matters of food and dress. An act done in furtherance of religion is protected. A person believing in a particular religion has to express his belief in such acts which he thinks proper and to propagate his religion. It is settled law that protection under Articles 25 and 26 of the Constitution extends guarantee for rituals and observances, ceremonies and modes of worship which form part and parcel of religion. Practice becomes part of religion only if such practice is found to be an essential and integral part. It is only those practices which are integral part of religion that are protected. What would constitute an essential part of religion or religious practice is to be determined with reference to the doctrine of a particular religion which includes practices which are regarded by the community as part and parcel of that religion. Test has to be applied by courts whether a particular religious practice is regarded by the community practising that particular practice as an integral part of the religion or not. It is also necessary to decide whether the particular practice is religious in character or not and whether the same can be regarded as an integral or essential part of religion, which has to be decided based on evidence.
87. It is not uncommon to find that those (sic) delve deep into scriptures to ascertain the character and status of a particular practice. It has been authoritatively laid down that cow sacrifice is not an obligatory overt-act for a Muslim to exhibit his religious belief. No fundamental right can be claimed to insist on slaughter of a healthy cow on Bakr Id day. Performance of "sharadha" and offering of "pinda" to ancestors are held to be an integral part of Hindu religion and religious practice. Carrying "trishul" or "trident" and "skull" by a few in a procession to be taken out by a particular community following a particular religion is by itself an integral part of religion. When persons following a particular religion carry trishul, conch or skull in a procession, they merely practise that which is part of their religion which they want to propagate by carrying symbols of their religion such as trishul, conch, etc. If the conscience of a particular community has treated a particular practice as an integral or essential part of religion, the same is protected by Articles 25 and 26 of the Constitution."
(emphasis supplied)
14. The petitioner's complaint at the first instance relating to the two poojas admittedly, are not performed by the State. As already stated, the State declares holiday on the particular date. So, the plea that the State is performing the religious festival or worship does not arise. The allegation on this score is totally misconceived. Therefore, the question is whether the prayer, pooja or worship by the individual at the office will in any way run contrary to the secular nature of the State or it will offend the G.O.Ms.No.426 dated 13.12.1993 referred to above is the issue to be considered.
15. Ayutha Pooja is referable to prayer, reverence or respect given to the objects through which an individual performs his profession or occupation. Ayutha Pooja in its real terms transcends all religion. Irrespective of religion, Ayutha Pooja is a sort of reverence shown by a cobblers, weavers, farmers, auto rickshaw drivers, rickshaw Pullers, carpenters, shop keepers, chartered accountants, advocates, doctors, officers or office staffs, house wives, drivers of all types of vehicles, etc., to the objects with which they pursue their livelihood, profession or occupation. If the individual concerned shows respect or reverence to such objects/tools, etc., it cannot be said that it offends the secular nature of the State.
16. According to free encyclopedia, the Wikipedia, the new age knowledge bank, Ayutha Pooja is "Worship of Implements" and it defines it as follows:-
"The Puja is considered a meaningful custom, which focuses specific attention to one's profession and its related tools and connotes that a divine force is working behind it to perform well and for getting the proper reward.
In the cross cultural development that has revolutionized the society, with modern science making a lasting impact on the scientific knowledge and industrial base in India, the ethos of the old religious order is retained by worship of computers and typewriters also during the ayudha Puja, in the same manner as practised in the past for weapons of warfare."
It is, therefore, clear that it is relatable to an object of one occupation or profession and religion takes an insignificant place.
17. Similarly, Saraswathy Pooja is referable to showing respect to education, knowledge, and the script. When the State has declared the day as holiday, it cannot be said that the State is propagating festivals offending secular nature. The form of worship or veneration to files and records on the close of the working day preceding the holiday for Ayutha Pooja or Saraswathy Pooja cannot be called as religious activity by the Government, affecting the secular State. In Government Offices, if an individual shows respect and reverence to the materials, books, files or records which are being handled by the individual, it will be referable to his individual freedom and there is nothing to show that it affects the secular nature of the State. Showing respect to the place of work and the objects of work will in no way offend the feeling of others or offend secularism. In other words, so long as the individual shows reverence and performs such pooja without affecting the rights of other persons/individuals and the third parties, it cannot be said that it offends the secular nature of the State. The Indian Constitution recognizes the religious right of each and every citizen, particularly, to his right to freedom of conscience and the right freely to profess, practise and propagate religion. The State advances the concept of unity in diversity. The State is empowered to regulate by law in terms of Article 25(2). The Government Order which is referred to in the present case is to ensure that a Government Office is not converted into a place of worship or prayer. It is not the case of the petitioner that a new construction is undertaken in the State Government office premises for the purpose of prayer or worship in violation of the Government Order. Petitioner also cannot state that he is offended by any individual showing respect and reverence to the objects of work, profession or occupation. It will amount to curtailing the right guaranteed under our Constitution.
18. If the petitioner's grievance is to be considered in a manner in which it is expressed, then a Hindu, a Christian or a Muslim or for that matter a person of any faith cannot pray silently or show reverence to his profession before he starts his work. A Sikh or Jain cannot show reverence to his religious Guru. If the relief sought for by the petitioner should be accepted, it is likely to cause disharmony among various religious groups as similar writ petition will be filed by one or other individual to restrain others from performing prayer of any kind or showing reverence even if it does not affect or offend others.
19. In the present case, the two poojas referred to by the petitioner cannot be termed as a religious activities in its strict sense. It is only a respect shown to the objects of one's profession or occupation. The respect shown to office file, reading materials, office utilities which are being used day-to-day by the person or the official concerned cannot be termed as offending the secular nature of the State.
20. Article 25 of the Constitution gives protection to an individual so long as such worship, prayer or reverence to the objects used in the course of his duty does not affect the working of the office of the State or that of any other individual.
21. In his poem "Where is God", one of the Greatest Freedom Fighters of our Nation and our National Poet, Mahakavi Barathiar stated that "all moving inanimate things are God, the pen is God and even the letters is God". The poem reads as follows:-
",aYfpd;w $lg;bghUs;f sidj;Je; bja;tk;;;.
vGJnfhy; bja;tkpe;j vGj;Je; bja;tk;/ "
Therefore, the reverence shown by an individual to the pen and to the office papers in his seat of office in whatever capacity he works without offending others and their official duties, cannot be said to offend the secular State.
22. Saraswathy Pooja and Ayutha Pooja is nothing but showing respect and reverence to the books of knowledge, tools of occupation, files and records which are the source of bread and butter to the particular individual. Therefore, showing respect in this regard will not amount to infringing the religious sentiments of other persons, moreso, if the prayer or reverence is by an individual done after office hours.
23. The letter of the Deputy Secretary to Government is totally irrelevant to the issue and has been issued without considering the earlier circular/letter dated 22.4.2010 issued by the Secretary to the Government based on the Division Bench Judgment in W.P.No.3298 of 2010. Therefore, this Court is not going into the veracity of the said letter/circular, as it is of no consequence.
24. In this case there is no allegation of new construction or expansion or modification for religious worship or prayer in the office premises. The relief sought for by the petitioner to restrict the individual's right to freely profess and practice religion is without any basis and without a cause of action. The present writ petition filed by the very same petitioner differently worded lacks bona fides. The respondents are not conducting any religious activity in the Government Office premises and hence the prayer is misconceived.
25. In the result, the Writ Petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
26. In the introductory paragraph of the District Office Manual, it is stated that a copy of the book will be supplied to every member of the establishment and he must make himself thoroughly conversant with the rules contained in it. A plea of ignorance will not be accepted. It further directs that the head of each section must ensure that every clerk in his section understands the rules, keeps his copy corrected upto date and hands it over to his successor at the time laying down the office. In G.O.Ms.No.514 Personnel and Administrative Reforms (Per.A) Department dated 26.12.1990, the Government directed that the District Office Manual would continue to be adopted in all Government Offices (except Secretariat where Secretariat Office Manual is applicable) with minor editorial changes. This Court is of the view that the District Office Manual should be re-named as the "Tamil Nadu Government Office Manual" and distributed to all applicable government offices. It took sometime for the Court to locate the manual as it is not available at most offices, prompting this Court to issue appropriate direction.
27. The first respondent Chief Secretary to Tamil Nadu Government is directed to take immediate steps to reprint the Tamil Nadu Government Office Manual as per the above G.O. dated 26.12.1990 with updates for use in all Government Offices. Such exercise should be done within a period of twelve weeks from the date of receipt of a copy of this order and report compliance to this Court. The Government is also directed to upload the Tamil Nadu Government Office Manual and other Manuals in the Government Website forthwith.
ts To
1.The Chief Secretary, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai.
2.The Deputy Secretary to Government, The Public (Miscellaneous) Department, Secretariat, Fort St. George, Chennai.
3.The Secretary, Personnel and Administrative Reforms Department, Secretariat, Fort St. George, Chennai.
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