1

IN THE HIGH COURT OF MANIPUR

AT IMPHAL

WP(C) No. 651 of 2017

1. Shri. Yangmi Haorei, aged about 42 years, S/o H.

Vareichin, resident of Leingang Ching (S.Laho),

P.O. & P.S.- Litan, Ukhrul District, Manipur, at

present Litan, P.O. & P.S.- Litan, Ukhrul District,

Manipur.

2. Shri. R. Moon, aged about 70 years, S/O Late R.

Ayok, resident of Leingang Ching (S. Laho), P.O. &

P.S. – Litan, Ukhrul District, Manipur, at present

Litan, P.O. & P.S.- Litan, Ukhrul District, Manipur.

3. Shri. R. Yuimi, aged about 35 years, S/O R. Moon,

resident of Leingang Ching (S. Laho), P.O. & P.S. –

Litan, Ukhrul District, Manipur, at present Litan,

P.O. & P.S.- Litan, Ukhrul District, Manipur.

4. Shri R. Robin, aged about 30 years, S/O R. Moon,

resident of Leingang Ching (S. Laho), P.O. & P.S. –

Litan, Ukhrul District, Manipur, at present Litan,

P.O. & P.S.- Litan, Ukhrul District, Manipur.

…… Petitioners

-Versus-

1. The State of Manipur, through the Addl. Chief

Secretary (Home), Government of Manipur,

Imphal, Manipur.

2. The Director General of Police, Government of

Manipur, Imphal, Manipur.

3. The Deputy Commissioner-Cum-District Magistrate,

Ukhrul District, Ukhrul, Manipur.

4. The Superintendent of Police, Ukhrul District,

Government of Manipur.

5. The Sharkaphung Village Authority represented by

its Chairman/Headman of Sharkaphung Village,

Shri Wungreikhan Kasar, aged about 30 years,

resident of Sharkaphung Village, P.O. & P.S. Litan,

Ukhrul District, Manipur.

6. The Leingangching Village Authority represented

by its Chairman Shri. S.W. Shoknganing, aged

about 55 years, S/O Late S.W. Kuingai, resident of

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Leingangching, P.O. & P.S. Litan, District Ukhrul,

Manipur.

7. The Deputy Commissioner, Kamjong District,

Kamjong, Govt. of Manipur, Kamjong, Manipur.

…… Respondents

BEFORE

HON’BLE THE ACTING CHIEF JUSTICE MR. N. KOTISWAR SI NGH

For the Petitioners :: Mr. Kh. Tarunkumar, Advoca te,

Mr. Mark Khapai, Advocate.

For the Respondents :: Mr. H. Samarjit, G.A.,

Ms. H. Bisheshwori, Advocate.

Date of hearing :: 29.11.2017

Date of Reserving Judgment :: 29.11.2017

Date of Judgment & Order :: 16.01.2018

JUDGMENT & ORDER

(CAV)

Heard Mr. Kh. Tarunkumar and Mr. Mark Khapai, learned

counsel for the petitioners as well as Ms. Bisheshwari, learned counsel for

the private respondents and Mr. Samarjit H., GA for the State respondents.

[2] In this petition, an apparently intra village dispute between

some of the villagers, all Christians, but belonging to different

denominations, has raised certain fundamental issues touching upon the

right of a villager to stay in his village as guaranteed under Article 19(1)(e)

of the Constitution of India and to practice his denominational faith under

Article 25 read with Article 26 of the Constitution of India and his right to

life and personal liberties as guaranteed under Article 21 of the Constitution.

[3] The 4 (four) petitioners claiming to be permanent residents of

Sharkaphung/Leingangching Village under Kamjong District, erstwhile part

of Ukhrul District of Manipur have alleged that they had been forcibly

expelled from their village by the Village Authority after the petitioners, who

were initially Baptist Christians, adopted Roman Catholic faith in the year

2009. The petitioners alleged that after they adopted Roman Catholic faith,

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they were warned by the Village Authority of Sharkaphung/Leingangching

to apologise and remain in the Baptist fold as, according to the Village

constitution, only one Christian denomination, i.e., Baptist Christianity will

be permitted to be practised in the village. The petitioners not having

heeded the warning, were served the quit notice on 08.03.2010 to leave the

village. According to the petitioners, as they failed to leave the village, their

houses and properties were destroyed and to avoid any physical harm they

escaped to a nearby Litan village and took shelter there. It is alleged that

though they had lodged an FIR at the Litan Police Station, no action was

taken by the Police. The petitioners also state that even interventions by

other Catholic organisations of nearby villages have come to nought and

they have continued to remain in Litan village where they had taken shelter.

[4] The petitioners state that when the wife of the petitioner No.

2 died on 10.12.2016, the petitioners requested the Village Authority of

Sharkaphung/Leingangching village for burial of the mortal remains in the

village which was refused, because of which the body was buried in another

village. It has been also stated that recently on 07.08.2017, the wife of the

petitioner No.1 expired after a prolonged illness. However, the request of

the petitioner no. 1 for burial of his wife in Sharkaphung/Leingangching

village was also turned down. After the refusal, the Tangkhul Catholic

Council and other organisations requested the District Authorities to allow

her mortal remains to be buried in the native village at Leingangching. The

representations to the authorities and protestations at various quarters

having evinced no response, the petitioners have approached this Court by

filing this petition seeking reliefs, inter alia, for quashing the constitution of

Leingangching village which stipulates that

“There should not be any

denominational activity dividing the existing Religion (i.e., Baptist

Christianity)”,

and for allowing burial of the mortal remains of the wife of

the petitioner no.1 in the courtyard of his house in the village of

Leingangching, payment of compensation for the damages suffered by the

petitioners and for directing the official respondents to take appropriate

measures for resettlement of the petitioners in the village and allow them

to practice the religion of their choice.

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[5] The private respondents, however, have vehemen tly opposed

the petition and the reliefs claimed. The Chairman/ Headman of

Sharkaphung/Leingangching Village, the Respondent no. 5 has filed the

affidavit-in-opposition on behalf of the Respondents no. 5 and 6 denying

the allegations made and on the contrary contended that the petitioners are

not residents of Sharkaphung/Leingangching village. They state that, in

fact, the petitioner No. 1 had migrated from another village (Khamasom) to

Leingangching sometime in the year 1996 and the names of the petitioners

do not find place in the census report of 2016 and 2017. It has been also

stated that every village in the hill areas of Manipur has a village

constitution which is to be followed by every villager. It has been contended

that the private respondents have no objection to the petitioners following

the Catholic faith and they were not expelled from the village because of

adoption of Catholic faith. The real reason, according to the private

respondents for expulsion of the petitioners, was that the petitioners while

remaining in the Sharkaphung/Leingangching village tried to form a new

village Committee without the knowledge and consent of the Village

Authority and tried to form a new village under the name of “Ramshairam”

and sought recognition of the said newly formed village from the Deputy

Commissioner on 13.08.2001 in violation of the customary laws and also

violated the oath of allegiance to the village constitution. It was also

contended that the wives of the petitioners No.1 and 2 had ceased to be

residents of Sharkaphung/Leingangching village and both died in some

other place and hence they were not allowed to be buried in the village. It

has been also stated that there is a civil dispute pending before the Court of

Civil Judge (Sr. Division), Ukhrul filed by the Petitioner no.1 and others and

as such, the burial in the disputed land was not allowed by the villagers. In

short, the plea of the private respondents is that the petitioners are not

residents of Sharkaphung/Leingangching village and they were expelled

because of the land dispute and for their attempts to disrupt the village

administration and not because they had adopted Catholic faith.

[6] The respondents thus, contended that the petit ioners had, in

fact, been expelled from the village for creating disunity in the village by

trying to set up a separate village though they were not the original settlers

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of the village. However, they are trying a give a religious colour to the civil

disputes. It has been asserted that in fact, there is no persecution of the

petitioners on the ground that they had converted to Catholic faith.

[7] The petitioners, in order to rebut the allegat ion of the

respondents that they are not the original residents of the village, have

relied on the Electoral Roll of 2007 in respect of 43 Phungyar (ST) Assembly

Constituency, District Ukhrul, Sub-Division Phungyar Part – 43/6 . In the

said electoral roll, the name of the petitioner No. 2 appears at serial No. 402

under House No. 97 and petitioner No. 1 appears at serial No. 420 as the

son of H. Vareichin.

Similarly, in the Electoral Roll of 2008 for the Assembly

Constituency, 43 Phungyar (ST) the name of the petitioner No. 2 appears at

serial No. 634 and petitioner No. 1 at serial No. 649. The name of the

petitioner No. 3 appears at serial No. 640 and the petitioner No. 4 at serial

No. 639. The said electoral roll is in respect of Leingangching village under

Phungyar Sub-Division, Ukhrul District. The wife of the petitioner No. 1,

namely, H. Ritah who expired on 07.08.2017, appears at serial No. 648 with

her husband’s name being shown as Yangmi (Petitioner No.1).

[8] In the same manner, in the Electoral Roll for the year 2011 of

the Assembly Constituency 43-Phungyar (ST), Manipur in respect of

Leingangching village under Phungyar Sub-Division, Ukhrul District, the

name of the petitioner No. 2 appears serial No. 268. In the electoral roll of

2012, in the Assembly Constituency for the 43 Phungyar (ST) Manipur, the

name of the petitioner No. 2 appears at serial No. 260, petitioner No. 3 at

serial No. 265, and petitioner No. 4 at serial No. 262.

[9] In the Aadhaar card issued by the Government o f India, in

respect of the petitioner No. 1, his address is clearly shown as

Leingangching, Sikibung, Ukhrul, and in respect of H. Rita, wife of the

petitioner No. 1, her address has been shown as Leingangching. So is the

case of the petitioner No. 2. In the identity card issued by the Election

Commission of India in respect of the petitioner No. 4, his address is shown

as Leingangching. In the identity card issued under the Mahatma Gandhi

National Rural Employment Guarantee, the petitioner No. 2 is shown to be

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the head of the household and is also shown to be a resident of

Leingangching under Phungyar Block. As far as the petitioner No. 1 is

concerned, the Headman of the Sikibung village himself had certified in 19-

02-1999 that he is a bonafide resident of Leingangching village and he was

recommended for award of the work for construction of the Leingangching

Primary School by the Headman. In fact, as late as 14-02-2017, the

Chairman of the Sikibung/Leingangching village authority had also

recommended the petitioner No. 1 for a housing scheme under the Pradhan

Mantri Awas Yojana (PMAY) for the year 2017-2018, certifying him to be a

bonafide resident of Leingangching. It may be noted that the name of the

village has been interchangeably used as

Sharkaphung/Leingangching/Sikibung.

The petitioners also contended that the father of the petitioner

No. 1 namely, H. Vareichin and the eldest son of petitioner No. 2 , namely,

R. Withing are allowed to stay in the Leingangching village as they had not

adopted Catholic faith, and continue to remain as Baptist Christians.

[10] The aforesaid assertions of the petitioners h ave been

controverted by the private respondents contending that when the aforesaid

Electoral Rolls of 2008-2011 were prepared, the petitioners were

temporarily residing at Sikibung. However, subsequently, their names were

deleted and as such, their names do not find place in the electoral rolls of

2016-2017. Similarly, as regards the Aadhaar Cards and the Identity cards

issued by the Election Commission of India, these were issued when they

were temporarily residing at Leingangching and now steps have been made

for deletion of the Leingangching Village as their village.

[11] As regards the contention of the petitioners that the father of

the petitioner No. 1 and eldest son of the petitioner No. 2 are still residing

at Leingangching village, it has been stated that they have been allowed to

remain in the village as they have not created any disturbance in the village

and they have not broken the vow of allegiance to the village constitution.

In fact, the petitioners were expelled from the village since 2010 by the

village authority as they had created problems in the village and also they

are not original villagers of Leingangching village.

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[12] In the midst of the proceeding, this Court had to deal with the

issue of burial of the wife of the petitioner No.1,which was being denied to

be buried at Leingangching village by the private respondents. Her mortal

remains were kept at another village at the Sacred Heart Parish, Hungpung.

This Court in an attempt to have an amicable solu tion to the

aforesaid issues called upon both the parties to arrive at an amicable

settlement by way of mediation, for which the Director of the Manipur

Judicial Academy was requested to act as the Mediator on 18

th

September,

2017. When the matter was taken up on 19-09-2017, it was informed by

the parties that there has been an amicable settlement as far as burial of

the dead body of late H. Ritah, wife of the petitioner No. 1 is concerned in

the Sikibung/Leingangching village in a place to be allotted by the Village

Authority of Sikibung/Leingangching. However, it was submitted on behalf

of the private respondents that the said permission for burial at

Sikibung/Leingangching was given purely on humanita rian ground.

Considering the settlement arrived at regarding the aforesaid issue of burial,

this Court urged both the contesting parties to go for another round of

mediation process to deal with the other contentious issue of alleged

expulsion of the petitioners from the village. However, as the said mediation

process relating to the allegation of expulsion has not resulted into any

agreement, this Court has proceeded to hear the parties to decide the

issues on merit.

[13] Ms. Bisheshwari, learned counsel for the private respondents

submits that as evident from the above, there is certainly a dispute about

the residential status of the petitioners in as much as they claim to be

original villagers of Sikibung/Leingangching. But they were merely

temporary residents of the village Leingnangching who migrated from

another village because of which they have filed a suit before the Civil Court

against the Village Authority of Leingangching as mentioned above claiming

their property in the village. This fact itself would indicate that there is a

serious dispute about the status of the petitioners as villagers of

Sikibung/Leingangching and since serious disputed questions of fact are

involved, it may not be appropriate for this Court to entertain this petition

and it should be left to be decided by the competent Civil Court.

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[14] Ms. Bisheshwari, learned counsel further subm its that since

the petitioners were never expelled from the village on the ground that they

had converted to Catholic Christianity, and since there is no issue of the

villagers of Leingangching, victimising or preventing the petitioners from

practicing their Catholic faith, the plea of the petitioners ought to be

rejected. In fact, they were expelled only because they created problems

and disturbances in the village for trying to set up a new village and form a

new village committee and for their undisciplined act which could not be

tolerated in the village. She submits that the petitioners will have every

right to stay in the village, if they are successful in the aforesaid civil suit

pending in the Civil Court and till such appropriate order is passed by the

Civil Court, they would have no right to claim to stay in the village.

[15] Accordingly, it has been submitted by Ms. Bis heshwari,

learned counsel for the private respondents that the relief claimed in this

petition for allowing the petitioners to stay in the village cannot be granted

as the same can be granted only by the Civil Court whose jurisdiction the

petitioners have already invoked.

[16] Before this Court proceeds to deal with the issues raised, it

may be appropriate to deal with the objection raised by the private

respondents that this Court may not entertain this petition as it involves

disputed questions of facts.

[17] Ms. Bisheswari submits that the petitioners h ave already

approached the Civil Court by filing a Civil suit claiming ownership of certain

lands which would clearly indicate that they are not residents of

Leingangching village and in any event, whether they are villagers and

possess lands in the village on the basis of which they are claiming that

they have a right to remain in the village, is to be decided by the Civil

Court on the basis of evidences, for which this Court may not be the

appropriate forum to decide, and accordingly submits that this Court many

not entertain this petition.

[18] It is on record that the petitioners have filed a suit before the

Court of the Civil Judge (Sr. Division), Ukhrul, being Civil Original

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(Declaration) Suit No. 1 of 2015 in which the petitioners have sought the

following reliefs:

“(i) a decree declaring that the Plaintiff No. 1,2,3,4 and 5 are the

owner and possessor of the suit land described in the Schedule-

A,B,C,D and E respectively.

(ii) a decree for permanent injunction against the Defendants

restraining the Defendants and their men from interfering with

peaceful possession of the Suit land by the Plaintiffs.

(iii) a temporary injunction against the Defendants and their men and

privies for restraining him/them for committing illegal acts by

trespassing inside the suit land.

(iv) Any other relief(S) which the Hon’ble Court deems fit and proper

in the facts and circumstances of the case, for the ends of justice.”

[19] On the other hand, the relief claimed in this writ petition is for

a declaration that the village constitution which requires that there should

not be any denominational activity dividing the existing religion (i.e., Baptist

Christianity), to be unconstitutional, and directing for allowing the

petitioners to resettle peacefully and to profess the religion of their choice

and for payment of compensation for the loss suffered by the petitioners.

It can be said that claim for payment of compensa tion would

involve deciding disputed questions of fact. As regards resettlement in the

village, the private respondents may claim that it would depend on the

success of the civil suit. Further, deciding whether the petitioners are

residents of the village would also involve deciding disputed facts.

However, it is to be remembered that residence in a place

does not necessary mean that one must own a land of his own or any

property. One may stay in a village as a tenant or with other relatives in the

village, which right cannot be deprived of on the ground that he does not

profess any particular religious denomination. The claim for right to reside

and settle in any part of the territory of India as guaranteed under Article

19(1)(e) claimed by the petitioners cannot be rejected on the ground that

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disputed questions of facts are involved, if there are sufficient materials on

record to decide such an issue.

Further, the other claim of the petitioners is that they were

original residents of Leingangching but were expelled as they renounced

Baptist Christianity and entered the Catholic fold, though the private

respondents have vehemently denied that the petitioners were expelled on

religious ground. Of course, consideration of this issue may also involve

appreciation of certain evidences. But it is also to be remembered that it

also involves exercise of the fundamental right to freedom of religion as

guaranteed under Article 25 of the Constitution.

This Court is of view that if violation of certain fundamental

rights has been alleged and there are certain materials on record to

examine these allegations, it may not be appropriate to close the doors of

this Court merely on the ground that it would involve deciding disputed

facts. It may be noted that every claim seeking enforcement of fundamental

rights may involve certain elements of appreciation of evidence and

consideration of facts, which may be disputed by either of the parties.

However, mere existence of such disputed facts may not be sufficient to

oust a petition, unless such a consideration would involve highly

complicated facts, whose proof may require elaborate recording of evidence

etc. If such disputes can be considered on the basis of affidavits or

admitted documents available on record, this Court can certainly entertain

such a petition.

[20] Keeping the aforesaid principle in mind, this Court would hold

that as regards the claim of the petitioners for payment of compensation,

the petitioners may approach the competent court for the same. However,

as regards the other issues raised in this petition which are founded on the

fundamental rights as guaranteed under Articles 19(1)(e) and 25 and 26 of

the Constitution, this Court would proceed to examine the same on merit.

Accordingly, the objection raised by Ms. Bisheshw ari, learned

Counsel for the private respondents that the petition is not maintainable is

rejected.

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[21] The petitioners have alleged that the petitioners have been

driven out from the village as they had converted to Catholic denomination,

which of course, has been vehemently denied by the private respondents.

In support of the claim of the petitioners that they were earlier residing in

the village, they have relied on the electoral rolls, Adhaar cards, etc. The

private respondents however, state that the petitioners were temporarily

staying in the village, and they were not original residents but had migrated

from other village. This would show that, the private respondents admit that

the petitioners were residing in the village before they were expelled. If that

is so, it is irrelevant whether they were original inhabitants or migrants from

other village for the purpose of consideration as to whether their rights as

guaranteed under Article 19(1)(e) had been violated or not, as enjoyment

of this right is not contingent on whether one is a permanent or temporary

resident of the place. In fact, the very language of the provisions of Article

19(1)(e) shows that one has the right to reside and settle in any part of the

territory of India. It does not merely guarantee a permanent resident of a

place to continue to reside in any part of the territory of India. This Article

implicitly recognises that one may move to any other part of the country as

guaranteed under Article 19(1)(d) and settle and reside as guaranteed

under Article 19(1)(e). These rights are only subject to reasonable

restrictions which may be placed either in the interests of the general public

or for the protection of the interests of any Scheduled tribes.

Articles 19(1)(d) and (e) read as follows:

“19. Protection of certain rights regarding freedom of speech,

etc.—(1) All citizens shall have the right—

(a) to freedom of speech and expression;

(b) ………………………………………

(c) ………………………………………

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

(f) ……………………………………….

(g) ………………………………………

(2) ………………

(3)………………

(4)……………….

(5) Nothing in sub-clauses (d) and (e) of the said clause shall

affect the operation of any existing law in so far as it imposes, or

prevent the State from making any law imposing, reasonable

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restrictions on the exercise of any of the rights conferred by the said

sub-clauses either in the interests of the general public or for the

protection of the interests of any Scheduled Tribe.”

Thus, a person, unless prevented in the interest of the general

public or for the protection of the interest of any Scheduled Tribe, has a

right to move freely throughout the territory of India and settle and reside

in any part of the country.

It is to be remembered that the petitioners and the private

respondents and other residents of Leingangching village themselves belong

to the same Scheduled Tribe Community. Further, no valid law or order had

been passed by the State or its agency preventing settlement or residing in

the said village.

The private respondents have of course, relied up on the

village constitution which places certain conditions for staying in the village,

the violation of which has been cited by the petitioners as the reason for

expelling the petitioners from the village. This village constitution has been

challenged by the petitioners as being unconstitutional.

[22] After India gained independence from the British Rule on the

15

th

of August, 1947, the Constituent Assembly was constituted which

framed and enacted the Constitution of India, which was adopted on the

26

th

November, 1949.

When the Constitution was adopted, the people of this free

country declared this country to be a sovereign, democratic republic as

clearly proclaimed in the Preamble to the Constitution. The Constitution

assures to secure to all its citizens, social, economic and political justice,

liberty of thought, expression, belief, faith and worship, equality of status

and opportunity assuring dignity of the individual. These cherished

constitutional goals are sought to be practically realised by guaranteeing

certain basic rights which are incorporated as Fundamental Rights under

Part III of the Constitution. These enumerated rights are not only essential

and fundamental for the development of the individuals enabling to live with

dignity, but have been so identified to limit the power of the State, so that

the State or its organs or agencies do not violate or encroach upon these

13

rights. The Fundamental Rights represent the claims of the individuals and

restrictions placed on the State.

The Fundamental Rights though sacrosanct, yet, ar e not

absolute. Societal needs require placing certain restrictions on the exercise

of these individuals rights as otherwise, untrammelled and unfettered rights

of individual rights may lead to anarchy and chaos. Part III of the

Constitution while enumerating these basic human rights as Fundamental

Rights thus, has provided for placing certain reasonable restrictions.

Part III of the Constitution containing Articles 12 to 35 deals

with the conglomerate of the fundamental rights, both substantive and

procedural and the limitations thereof.

While Article 12 defines what “State” means for t he purpose of

the Fundamental Rights guaranteed under the Constitution, Article 13

declares that any existing law which is inconsistent or in derogation of the

fundamental rights, to that extent, will be void. It further declares that the

State shall not make any law which takes away or abridges the rights

conferred under this Part.

Article 13 further elaborates that “law” includes any

Ordinance, order, bye-law, rule, regulations, notification, custom or usage

having the force of law. What this Article mandates is that it is not only the

laws made by the Legislatures or orders, rules framed by the State, but also

any custom or usage which has the force of law which must conform to the

fundamental rights. Otherwise, such laws, including the customary laws

and practices having the force of law would be liable to be declared void

and unconstitutional to the extend they are inconsistent or derogatory to

the fundamental rights.

Equality clause under the Constitution is covered under

Articles 14 to 18. Article 14 is main provision which ensures that the State

shall not deny to any person equality before the law or equal protection of

the laws within the territory of India. Other Articles 15 to 18 are the various

facets of the right to equality.

Article 19 consists of bundle of rights to freedo m. Various

dimensions of right to freedom of a person necessary to have for a full

expression of the individuality and potentiality of a person, of course

14

confined only to the citizens of this country, have been encapsulated under

Article 19. Article 19 assures that all the citizens shall have the following

rights, namely,

(

a) to freedom of speech and expression;

(

b) to assemble peaceably and without arms;

(

c) to form associations or unions, co-operative societies;

(

d) to move freely throughout the territory of India;

(

e) to reside and settle in any part of the territory of India; and

(

g) to practise any profession, or to carry on any occupation,

trade or business.

These rights are, however, subject to certain rea sonable

restrictions as mentioned in the Article.

Of the aforesaid rights, fundamental rights to freedom as

guaranteed under Articles 19(1)(d) and (e) are of immediate relevance to

us as far as this case is concerned.

Article 19 is, of course, not exhaustive of the individual rights.

These rights are complemented by other fundamental rights mentioned in

Part III.

Articles 20 to 22 deal with important aspects of the right to

freedom which have been specifically mentioned to emphasise the

significance of these rights. Article 20 provides that no person shall be

convicted of any offence except for violation of a law in force at the time of

the commission of the act charged as an offence, nor be subjected to a

penalty greater than that which might have been inflicted under the law in

force at the time of the commission of the offence. Further, no person shall

be prosecuted and punished for the same offence more than once and no

person accused of any offence shall be compelled to be a witness against

himself.

One of the most important fundamental rights is contained in

Article 21 which provides that no person shall be deprived of his life or

personal liberty except according to procedure established by law.

Article 21-A is a newly inserted right assuring free and

compulsory education to all children of the age of six to fourteen years.

Article 22 guarantees protection against arrest and detention in

certain cases.

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Articles 23 and 24 provide for the rights against exploitation.

Articles 25 to 28 contain rights relating to freedom of religion, of

which Articles 25 and 26 are of immediate relevance to the case.

Articles 29 and 30 deal with the cultural and educational rights of

the minorities.

The right to move the Supreme Court for enforcement of the

rights under Part III has been also guaranteed under Article 32. Remaining

Articles deal with limitations or restrictions that may be placed on

fundamental rights and also on the State.

[23] The issues raised in this petition involve exercise of rights as

guaranteed under Articles 19, 21, 25 and 26.

Article 19 enumerates the various rights freedom guaranteed

under the Constitution of which, we are immediately concerned with the

rights as guaranteed under Article 19(1)(d) and (e) which provide for

freedom to move freely throughout the territory of India and to reside and

settle in any part of the territory of India.

The other fundamental rights which are of relevanc e to this case

are Articles 25 and 26, as there is an allegation that the petitioners have not

been allowed to profess and practice religion of their choice in the village

and have been expelled from the village on the ground that the petitioners

have adopted the Catholic faith of Christianity.

Article 25 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.

Explanation I.—……………………

Explanation II.—………………….

16

Article 26 reads as follow:

“Subject to public order, morality and health, every

religious denomination of any section thereof shall have the

right

a) to establish and maintain institutions for religious and

charitable purposes;

b) to manage its own affairs in matters of religion;

c) to won and acquire movable and immovable property;

and

d) to administer such property in accordance with law”

Closely co-related with the aforesaid rights is one of the most

basic human rights which has been included in the Constitution as Article 21

which guarantees the right to life and personal liberty. Article 21 reads as

follows:

“ Article 21. Protection of life and personal liberty: No person

shall be deprived of his life or personal liberty except according

to procedure established by law.”

[24] As mentioned above, the freedom of movement throughout

the territory of India has been guaranteed under Article 19(1)(d) of the

Constitution. It, therefore, ensures that any citizen of this country will have

the right to go wherever he chooses without any distinction of any State or

local boundary. This right to move freely in any part of the territory of the

Country is complemented by the right to reside and settle in any part of the

territory of India. These provisions affirm the unity of this country. This

Country may consist of union of many States. However, such distinction of

separate States will not come in the way of any citizen to move to any part

of the territory of the country as this Union forms a single country governed

by the same fundamental law, i.e., the Constitution of India. The same

principle applies to any intra state movement. It is to be noted that village

forms one of the smallest political units. These rights to move freely

throughout the territory of the country and to settle and reside in any part

of the territory of India are only subject to the limitations that reasonable

restrictions can be imposed on these rights in the interests of the general

public or for the protection of the interests of any Scheduled Tribe.

17

[25] It is to be remembered that both the petition ers and the

private respondents belong to the same Scheduled Tribe community and as

such there may not be any problems with any restriction which may be

placed in the interests of Scheduled Tribe. Further, there is no such issue

about reasonable restrictions to be imposed in the interests of general

public.

[26] The restriction imposed on the petitioners as alleged by them

was placed by the Headman of Sarkhapung village, representing the Village,

who is an authority within the meaning of Article 12 of the Constitution of

India. The Headman of the Village is also the Chairman of the Village

Authority by virtue of Section 3(4) of the Manipur (Village Authorities in Hill

Areas) Act, 1956.

The Headman/Chairman of the Sarkhapung Village Au thority

does not deny expulsion of the petitioners from the village, but deny that it

was on the ground of the petitioners adopting Catholic faith but because the

petitioners allegedly joined hands together to form a new village committee

without the knowledge and consent of the Village Authority as stated in

para no.5 of the affidavit in opposition filed by the Respondent no. 5 and 6.

It has been charged by the Respondents no.5 and 6 that by such acts of the

petitioners, they had violated the village constitution.

The Respondents no.5 and 6 have also alleged that the

decision to expel the petitioners was taken by the Village Council and not by

the Village Authority. Hence, Article 12 of the Constitution will not be

attracted as Village Council is not an authority within the meaning of Article

12 of the Constitution. However, this Court is of the view that such a

contention of the Respondents no.5 and 6 may not be entertained in view

of the specific plea of the Respondents no. 5 in the additional affidavit filed

on 11.9.2017 in paragraph no. 7 thereof that the petitioners were

expelled/banished from the village since 2010 by the Village Authority. The

aforesaid para no.7 reads as follows:

18

“7. That with reference to Para no. 6 of the Additional affidavit

the deponent reiterated submitted that the petitioners were

expelled/banished from the village since 2010 by the village

Authority and they are not the villagers of the Leingangching

village anymore.”

[emphasis added]

[27] The fact that the Respondents 5 and 6 have cl aimed that the

petitioners were banished/expelled from the village as the petitioners tried

to form a new committee in the village without the consent of the Village

Authority would itself indicate that the petitioners were earlier residing in

the village. Whether, prior to that they were residents of another village and

they had subsequently migrated to the village, in the opinion of this Court,

may not be of much relevance as the petitioners would have a fundamental

right to move freely throughout the territory of India and to reside and

settle in any part of the territory of this country. The fact that the

petitioners before being banished/expelled from the village were residing in

the village would imply that their stay in the village was protected by the

rights as guaranteed under Articles 19(1)(d) and (e) of the Constitution.

Thus, if the petitioners had been residing in the village before

they were banished/expelled by the Village Authority, the question would

arise, as to under what authority of law, the Village Authority of

Leingnagching could expel the petitioners. Is the reason put forth by the

Respondents no.5 and 6 that the petitioners were expelled from the village

as they had tried to form a new village committee without the consent of

the village authority and in violation of the village constitution, be valid in

law? In the opinion of this Court, the answer must be a categorical ‘No’.

The Village Authority is not endowed with any suc h power to

order banishment/expulsion of any villager. The powers and functions of the

Village Authority are clearly laid down under Section 16 of the Manipur

(Village Authorities in Hill Areas) Act, 1956, which provides that it shall to

the best of its ability maintain law and order and for that purpose exercise

and perform the powers and duties generally conferred and imposed on the

police by or under the Police Act, 1961. There is nothing under the Police

Act empowering any person to be expelled/banished from the place of

residence.

19

Under the Manipur (Village Authorities in Hill Ar eas) Act, 1956

there is also provision for constitution of Village Court under section 19

thereof. However, it is not the case of the private respondents that the

order of banishment was passed by the Village Court. In any event, even

the Village Court has no such power for expulsion or banishment from the

village also as it has the limited power to impose fines or to award

compensation as provided under Section 26 of the Act.

[28] Thus, the order of expulsion of the petitioners from the village

issued by the Village Authority was without any authority of law, even if the

private respondents claim that the cause of expulsion was not because of

conversion of the petitioners to Catholic faith.

[29] The petitioners, however, assert that they were expelled on

religious ground as they had adopted Catholic faith.

This Court will examine the claim of the petitioners on the basis

of undisputed facts and materials before this Court.

[30] The petitioners have annexed a copy of the village constitution

(riyan) which is not disputed by the private respondents.

Para 18 of the village constitution which has been also

challenged by the petitioners as unconstitutional reads as follows:

“18. There shall not be any denominational activity dividing the

existing Religion (i.e., Baptist Christianity).”

The aforesaid provision therefore, in categorical terms disallows

any other denominational activity including practice of Catholic faith in the

village, except Baptist Christianity.

[31] The petitioners have also annexed a copy of t he appeal

submitted by the Parish Priest of the Sacred Heart Parish on 8.11.2009

addressed to the Headman and Village Authority of the Sharkaphung Village

for allowing to open a Catholic Church in Leingangching village and not to

disturb persons who wish to convert to Catholic faith. In response, the

Headman of Sharkaphung/Sikibung Village informed the Sacred Heart

Parish Pastoral Council that as per the decision of the Village Authority

taken on 21.11.2009, no other denomination should exist in the village or

any second locality in the village.

20

The Chairman of the Village Authority further inf ormed the

Sacred Heart Parish Pastoral Council on 24.11.2009 that while the Village

Authority has no objection to the conversion of the petitioner no.1 to

Roman Catholic religion, since Sharkaphung/Leingangching village has only

one denomination, he should apologise, failing which he should leave the

village. The clear inference that can be drawn from the said letter is that

though the Village Authority has no objection to adoption of Catholic faith,

since the village follows only one religious denomination of Baptist faith, he

has to apologise for the same and he cannot remain in the village as a

Catholic, as otherwise, he has to leave the village. If he has to remain in the

village, he has to profess Baptist Christianity.

Apparently, the petitioner no.1 did not apologise as sought by

the Village Authority and accordingly, he was served with the quit notice on

8.3.2010 on the ground that he has violated the village constitution. Though

it has not been specifically mentioned in the quit notice that he was being

asked to leave the village as he converted to Catholic faith, it can be clearly

inferred so, from the earlier communications read with Para no. 18 of the

village constitution. In fact, the petitioners made an appeal before the

Village Authority of Leingangching village on 6.8.2014 that they may be

allowed to return to their village and practice their Catholic faith. Though

the private respondents have denied that the petitioners were expelled from

the village on religious ground, these documents would indicate otherwise,

and the correctness of these documents have not been denied by the

private respondents. These documents unambiguously indicate that the

petitioners were in fact expelled by the private respondents and the Village

Authority of Leingangching as the petitioners did not conform to the

mandate of the village constitution allowing only one religious denomination

of Baptist Christianity. Of course, other attending factors of trying to form a

new group in the village may have also contributed to their expulsion from

the village. What, however, comes out very clearly from the foregoing

documents is that conversion of the petitioners to Catholic faith was

certainly a decisive contributing factor for their expulsion from the village.

[32] This takes us to the next related issue, as to whether, any

villager has a right to practice a different denominational faith and still

21

reside in the village and whether the mandate of the village constitution

that there will be only one religious denomination of Baptist Christianity in

the village can be said to be permissible in law.

[33] Certainly, any person or a group of persons c an profess any

religion of his or their choice and accordingly also establish a village of their

own and can also manage their own affairs as guaranteed under Articles 25

and 26 of the Constitution of India. However, such rights cannot come in

the way of any villager, if he so decides to leave that particular religious

faith and adopts another religious faith or denomination as such a person

will have equal right to profess and practice his own religion as guaranteed

under Article 25. Such person will also have the right to manage his own

religious affairs as guaranteed under Article 26 of the Constitution. Thus the

rights of a person as guaranteed by Articles 25 and 26 cannot be defeated

by exercise of similar rights by other persons. This seems to have been

happening in the instant case.

The villagers of Leingangching have every right to follow the

Baptist Christianity and accordingly, also manage their affairs in tune with

the Baptist principles and practices. However, it cannot come in the way of

the petitioners professing a different religious denomination of Catholic faith

as they have also similar fundamental right to profess and practice Catholic

Christianity as guaranteed under Article 25 of the Constitution of India. On

adopting such Catholic faith, they also would have a right to establish and

maintain institutions for religious and charitable purposes and, manage their

own affairs including owning, acquiring movable and immovable properties

and administer such property in accordance with law as guaranteed under

Article 26 of the Constitution, which would include setting up a church in

the village provided they have their own land and other means to do so.

[34] Grantaire in Victor Hugo’s

Les Miserables tells Enjolras,”…….The

liberty of one citizen ends where the liberty of another citizen begins……”.

In similar vein, it was observed, as generally attributed to US Supreme

Court Justice Oliver Wendell Holmes, Jr, “Your right to swing your arms

ends just where the other man’s nose begins.”

22

[35] This Court would, accordingly, hold that the petitioners would

have the fundamental right to profess, practice religious faith of their choice

as guaranteed under Article 25 of the Constitution which cannot be violated

by the Village Authority, which is an authority within the meaning of Article

12 of the Constitution of India. This fundamental right to profess and

practice religion of one’s own choice will be subject only to public order,

morality and health and can be regulated or restricted by the State only in

respect of any economic, financial, political or other secular activity which

may be associated with religious practice. The Village Authority is a

statutory authority constituted under the Manipur (Village Authorities in Hill

Areas) Act, 1956 having statutory power of village administration as

provided under the Act and tasked with the responsibility of maintaining law

and order in village having police power as provided under the Police Act,

1961. Therefore, if the Village Authority has directed banishment and

expulsion of the petitioner as stated in the additional affidavit of the private

respondents, quoted above, the same will be plainly illegal being violative of

fundamental rights of the petitioners as guaranteed under Articles 19(1)(d)

and (e) as well as Articles 25 and 26 of the Constitution of India.

[36] That takes us to the issue whether, in view o f the

Constitutional provisions discussed above, the village constitution which

mandates that there shall not be any denominational activity dividing the

existing Religion (i.e., Baptist Christianity) can be said to be valid.

[37] In the opinion of this Court, it cannot be said to be valid, as

the same is violative of Articles 25 and 26 of the Constitution of India. The

said provision of the village constitution, by the said injunction prohibits

existence or practice of any other denominational activity other than Baptist

Christianity in the village which has the effect of abrogating the rights

conferred under Articles 25 and 26 of the Constitution of India.

[38] Pandit Lakshmi Kanta Maitra (West Bengal), a m ember of the

Constituent Assembly of India observed while debating on Article 19 of the

Draft Constitution(now Article 25 of the Constitution) on 6

th

December,

1948 in the following words,

23

“………..At the same time we must be very careful to see that in

this land of ours we do not deny to anybody the right not only to

profess or practise but also to propagate any particular religion.

Mr. Vice-President, this glorious land of ours is nothing if it does

not stand for lofty religious and spiritual concepts and ideals.

India would not be occupying any place of honour on this globe if

she had not reached that spiritual height which she did in her

glorious past. Therefore I feel that the Constitution has rightly

provided for this not only as a right but also as a fundamental

right. In the exercise of this fundamental right every community

inhabiting this State professing any religion will have equal right

and equal facilities to do whatever it likes in accordance with its

religion provided it does not clash with the conditions laid down

here………..”

[39] This fundamental right to freedom of religion is derived from

the very rich cultural heritage of this country. This fundamental right is also

based on the virtue and principle of universal tolerance practiced in this

country since time immemorial. Sri K. Sanathanam, another member of the

Constituent Assembly observed that this Article was not so much an article

on religious freedom but on religious tolerance, in the following words,

“……….Sir, I stand here to support this article. This article has to

be read with article 13, article 13 has already assured freedom of

speech and expression and the right to form association or

unions. The above rights include the right of religious speech and

expression and the right to form religious association or unions.

Therefore, article 19 is really not so much an article on religious

freedom. But an article on, what I may call religious toleration. It

is not so much the words "All persons are equally entitled to

freedom of conscience and the right freely to profess, practise

and propagate religion" that are important. What are important

are the governing words with which the article begins, viz.,

"Subject to public order, morality and health"………………………..

Therefore I submit to you that this article, as it is, is not so much

an article ensuring freedom, but toleration--toleration for all,

irrespective of the religious practice or profession. And this

toleration is subject to public order, morality and health…………”

[40] Swami Vivekananda in his celebrated address a t the World’s

Parliament of Religions, Chicago, more than hundred years before, on the

11

th

of September, 1893 in response to his welcome, spoke in these stirring

words, which reflect the tolerant spirit and catholicity of Indian culture

which are now echoed amongst others, in Articles 25 and 26 of the

Constitution and the effect and dangers of intolerance,

24

“Sisters and Brothers of America,

It fills my heart with joy unspeakable to rise in response

to the warm and cordial welcome which you have given us. I

thank you in the name of the most ancient order of monks in the

world; I thank you in the name of the mother of religions; and I

thank you in the name of millions and millions of Hindu people of

all classes and sects.

My thanks, also, to some of the speakers on this platform

who, referring to the delegates from the Orient, have told you

that these men from far-off nations may well claim the honour of

bearing to different lands the idea of toleration. I am proud to

belong to a religion which has taught the world both tolerance

and universal acceptance. We believe not only in universal

toleration, but we accept all religions as true. I am proud to

belong to a nation which has sheltered the persecuted and the

refugees of all religions and all nations of the earth. I am proud

to tell you that we have gathered in our bosom the purest

remnant of the Israelites, who came to Southern India and took

refuge with us in the very year in which their holy temple was

shattered to pieces by Roman tyranny. I am proud to belong to

the religion which has sheltered and is still fostering the remnant

of the grand Zoroastrian nation. I will quote to you, brethren, a

few lines from a hymn which I remember to have repeated from

my earliest boyhood, which is every day repeated by millions of

human beings:

“As the different streams having their sources in

different places all mingle their water in the sea, so, O Lord, the

different paths which men take through different tendencies,

various though they appear, crooked or straight, all lead to

Thee.”

The present convention, which is one of the most august

assemblies ever held, is in itself a vindication, a declaration to the

world of the wonderful doctrine preached in the Gita:“Whosoever

comes to Me, through whatsoever form, I reach him; all men are

struggling through paths which in the end lead to m e.”

Sectarianism, bigotry, and its horrible descendant, fanaticism,

have long possessed this beautiful earth. They have filled the

earth with violence, drenched it often and often with human

blood, destroyed civilisation and sent whole nations to despair.

Had it not been for these horrible demons, human society would

be far more advanced than it is now. But their time is come; and

I fervently hope that the bell that tolled this morning in honour of

this convention may be the death-knell of all fanaticism, of all

persecutions with the sword or with the pen, and of all

uncharitable feelings between persons wending their way to the

same goal. (emphasis

added)

25

[41] What does the Bible say of tolerance?

“ During his ministry, Jesus Christ was surrounded by intolerance.

Jews and Samaritans in particular hated one another.(John

4:9)Women were treated as inferior to men. And Jewish

religious leaders scorned the common people. (John 7:49)

Jesus Christ stood out as vastly different. “This man welcomes

sinners and eats with them,” said his opposers. (Luke 15:2)

Jesus was kind, patient, and tolerant because he came, not to

judge people, but to heal them spiritually. Love was his primary

motivation.— John 3:17; 13:34.

(https://www.jw.org/en/publications/magazines/g201508/bible-says-

about-tolerance)

[42] This is what Romans 14:1-4 says, about tolerance,

“As for the one who is weak in faith, welcome him, but not to

quarrel over opinions. One person believes he may eat anything,

while the weak person eats only vegetables. Let not the one who

eats despise the one who abstains, and let not the one who

abstains pass judgment on the one who eats, for God has

welcomed him. Who are you to pass judgment on the servant of

another? It is before his own master that he stands or falls. And

he will be upheld, for the Lord is able to make him stand.”

Luke 9:46-47 also says,

“ An argument started among them as to which of them might be

the greatest. But Jesus, knowing what they were thinking in their

heart, took a child and stood him by His side.”

[43] One may also have one of the Christian views on tolerance, in

the following words,

“The ‘divine plan’ for history does not involve the

destruction of human cultures, religions or civilizations, but is

rather a divine acceptance for them, signified in the very

resurrection of Jesus. They all bring their unique contribution to

the wholeness of human growth. They are an indispensable part

of the process. This is the vision that commands the Christian

understanding of our world and its direction. This does not, of

course, deny the right of other people to propose different

visions and to live according to them. Even if we do not

understand how, we think that the various visions will be

somehow integrated into the divine purpose. This plan is a call to

action which extends to all human beings: a call to work for

reconciliation of all polarities, for the overcoming of all enmities,

for equality and freedom for all, a call to bring together, to make

peace, to preach forgiveness of sins for people who are alienated

from one another or from God. This is what makes the Christian

tick.”

26

[Christianity in India: Two Thousands Years of Faith ,

Authors: Leonard Fernando and G. Gispert-Sauch; published by

Viking/Penguin Books, India, 2004.]

[44] Religion, theology, philosophy apart, the Constitution of India,

which is the paramount law of this Country and foundational basis of the

polity of this Country guarantees religious tolerance by assuring all the

citizens of this country the right to religious freedom to profess and practice

and propagate religion of his choice and manage their own affairs as

enshrined under Articles 25 and 26 of the Constitution. The solemn pledge

taken by the countrymen on adoption of the Constitution to secure to all the

citizens of this country social, economic and political Justice, Liberty of

thought, expression , belief, faith and worship and Equality of status and of

opportunity have been translated into constitutional provisions as found

under Part III of the Constitution.

[45] In

Shayara Bano v. Union of India, (2017) 9 SCC 1, the

Hon’ble Supreme Court held as follows:

“25. To freely profess, practise and propagate religion of one’s

choice is a fundamental right guaranteed under the Indian

Constitution. That is subject only to the following— (

1) public

order, (

2) health, (3) morality and (4) other provisions of Part III

dealing with fundamental rights. Under Article 25(2) of the

Constitution of India, the State is also granted power to make

law in two contingencies notwithstanding the freedom granted

under Article 25(1). Article 25(2) states that:

“25. (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.”

Except to the above extent, the freedom of religion under the

Constitution of India is absolute……………..”

[46] We may, therefore, examine as to whether such a provision in

the village constitution that there shall not be any denominational activity

dividing the existing Religion (i.e., Baptist Christianity) is void, as contended

by the petitioners.

27

What the aforesaid provision in the village constitution mandates

is that other than Baptist Christianity, no other denominational activity will

be allowed to be practised in the village. Thus, if a person seeks to profess

and practice Catholic faith in the village, and since it is not part of the

Baptist Christianity, he cannot do so in the village because of the aforesaid

provision of the village constitution. In such event, what would Articles 25

and 26 of the Constitution mean to him? Absolutely, redundant for him.

Articles 25 and 26 will have no meaning for him. Will this injunction then,

be permissible in the face of Articles 25 and 26 of the Constitution? The

obvious answer will be in the negative.

[47] It was held by the Hon’ble Supreme Court in

Commr., Hindu

Religious Endowments v. Sri Lakshmindra Thirtha Swa miarof Sri

Shirur Mutt, 1954 SCR 1005 : AIR 1954 SC 282

that,

“ 23. ……………………………..As we have already indicated,

freedom of religion in our Constitution is not confined to religious

beliefs only; it extends to religious practices as well subject to the

restrictions which the Constitution itself has laid down. Under

Article 26(

b), therefore, a religious denomination or organization

enjoys complete autonomy in the matter of deciding as to what

rites and ceremonies are essential according to the tenets of the

religion they hold and no outside authority has any jurisdiction to

interfere with their decision in such matters. Of course, the scale

of expenses to be incurred in connection with these religious

observances would be a matter of administration of property

belonging to the religious denomination and can be controlled by

secular authorities in accordance with any law laid down by a

competent legislature; for it could not be the injunction of any

religion to destroy the institution and its endowments by

incurring wasteful expenditure on rites and ceremonies. It should

be noticed, however, that under Article 26(

d), it is the

fundamental right of a religious denomination or it s

representative to administer its properties in accordance with

law; and the law, therefore, must leave the right o f

administration to the religious denomination itself subject to such

restrictions and regulations as it might choose to impose. A law

which takes away the right of administration from the hands of a

religious denomination altogether and vests it in any other

authority would amount to a violation of the right guaranteed

under clause (

d) of Article 26.”

[48] Article 13 (1) of the Constitution provides that all laws in force in

the territory of India immediately before the commencement of this

28

Constitution, in so far as they are inconsistent with the provisions of Part III

shall, to the extent of such inconsistency, be void. Article 13(2) further

provides that the State shall not make any law which takes away or

abridges the rights conferred by Part III and any law made in contravention

of this clause shall, to the extent of the contravention, be void. It has been

clarified under Article 13(3)(a) “law” includes amongst others, rule,

regulation, notification, custom or usage having in the territory of India the

force of law.

Thus, if any regulation or custom or usage having the force of

law takes away or abridges or is inconsistent with the provisions of Part III,

to that extent it will be void.

[49] The part of the village constitution which lays down that there

shall not be any denominational activity dividing the existing Religion (i.e.,

Baptist Christianity), which was enforced by the Village Authority of the

Leingangching plainly militates against the constitutional spirit but also basic

tenets of Articles 25 and 26 of the Constitution. This injunction is not

related to public order, morality and public health and hence, cannot limit

the fundamental rights of the petitioners as guaranteed under Articles 25

and 26 of the Constitution. This also cannot be construed to be part of any

law which regulates or restricts any economic, financial, political or other

secular activities which may be associated with the practice of Catholic faith

as provided under sub-clause 2(a) of Article 25.

The inexorable and inescapable conclusion is that the said

provision of the village constitution which lays down that there shall not be

any denominational activity dividing the existing Religion (i.e., Baptist

Christianity) is void in law and cannot be enforced being violative of Articles

25 and 26 of the Constitution of India.

[50] If any citizen of this Country is banished from his village by a

village authority and that too on the ground that he has adopted a different

religious faith, it is violative of not only Article 19(1)(d) and (e) and Articles

25 and 26 of the Constitution without following any validly enacted law or

by following the procedures of law, it would also amount to violation of the

overarching Article 21 of the Constitution which guarantees that no person

29

shall be deprived of his life or personal liberty except according to the

procedure laid down by law.

[51] It is to be remembered also that it is the Rule of Law on which

the entire constitutional structure of this country is founded and the

constitutional norms have evolved and the rights of the citizens are

protected and the authority of the institutions regulated by laws guided by

Rule of Law. The Supreme Court, thus, in

Masood Alam v. Union of

India, (1973) 1 SCC 551

observed that,

“…….The rule of law reigns supreme in this Republic and no

person on the soil of free India can be deprived of his personal

liberty without the authority of law.”

[52] What is Rule of Law?

The term 'Rule of Law' though nowhere found in the Indian

Constitution, pervades the entire governance of this country and has been

referred to extensively by the Courts in India. It has assumed such

constitutional importance that it has been recognised as one of the 'basic

features' of the Constitution in Indira Nehru Gandhi v Raj Narain, 1975

Supp SCC 1 and SP Gupta v Union of India, 1981 Supp SCC 87.

The Rule of Law is invoked by the Indian Courts to invalidate any

arbitrary action on the part of the executive and uphold the supremacy of

law. The other important attributes of Rule of Law is that law should be

clear, unambiguous, predictable and applicable equally to everyone

irrespective of status, standing or occupations. Equality before law is the

main feature of Rule of Law.

Other very important aspects of Rule of Law are the existence of

basic and fundamental human rights which are necessary for leading a life

with dignity, institutional mechanism for preventing the State from

encroaching upon these rights and existence of an institution which would

act as the

qui vive to protect the rights of the citizens. Thus the principle of

judicial review of legislative and executive actions by an independent

judiciary also becomes an inseparable part of Rule of Law. The concept of

Rule of Law is dynamic and constantly evolving with challenges of time and

30

many of these facets of the Rule of Law may be necessary to be mentioned

here.

Professor Dicey has pointed out three main principles of Rule of

Law:

(i) Absence of Arbitrary Power or Supremacy of Law,

(ii) Equality before Law,

(iii) The constitution is the consequence of the rights of the

individuals.

In India, the third principle is substituted by the written

Constitution which is the source of all the rights of the individuals and rules

that regulate the functioning of the body polity.

The existence of and protection of human rights is one of the

most important part of the Rule of Law.

[53] The Hon’ble Supreme Court in India held in Renu v. District &

Sessions Judge, (2014)14 SCC 50 that,

“5. The rule of law is the basic feature of the Constitution. There

was a time when REX was LEX. We now seek to say LEX is REX.

It is axiomatic that no authority is above law and no man is

above law. Article 13(2) of the Constitution provides that no law

can be enacted which runs contrary to the fundamental rights

guaranteed under Part III of the Constitution. The object of such

a provision is to ensure that instruments emanating from any

source of law, permanent or temporary, legislative or judicial or

any other source, pay homage to the constitutional provisions

relating to fundamental rights. Thus, the main objective of Article

13 is to secure the paramountcy of the Constitution, especially

with regard to the fundamental rights. The aforesaid provision is

in consonance with the legal principle of “rule of law” and they

remind us of the famous words of the English jurist, Henry de

Bracton — “The King is under no man but under God and the

Law”. No one is above law. The dictum — “Be you ever so high,

the law is above you” is applicable to all, irrespective of his

status, religion, caste, creed, sex or culture. The Constitution is

the supreme law. All the institutions, be it legislature, executive

or judiciary, being created under the Constitution, cannot ignore

it. The exercise of powers by an authority cannot be unguided or

unbridled as the Constitution prescribes the limitations for each

and every authority and therefore, no one, howsoever high he

may be, has a right to exercise the power beyond the purpose

for which the same has been conferred on him. Thus, the powers

have to be exercised within the framework of the Constitution

and legislative provisions, otherwise it would be an exercise of

31

power in violation of the basic features of the Constitution i.e.

Part III dealing with the fundamental rights which also prescribes

the limitations.”

[54] In the opinion of this Court there has been serious breach of the

Rule of Law in the instant case.

[55] For the reasons discussed above, this Court would unhesitatingly

hold that when the petitioners were expelled/banished from the village by

the Village Authority of Leingangching village, it was not by any valid order.

Hence, it was violative of Article 21 of the Constitution. Further, such

expulsion and banishment of the petitioners from Leingangching Village also

violated the Fundamental Rights of the petitioners as guaranteed under

Articles 19(1)(d) and (e) of the Constitution and hence, illegal. The

petitioners have the fundamental right to reside and settle in Leingangching

village in their respective residences/homes in Leingangching village.

[56] This Court also for the reasons discussed above holds that the

expulsion and banishment of the petitioners from the village by the Village

Authority of Leingangching village, was also actuated by religious motive

based on the village constitution which lays down that there shall not be

any denominational activity dividing the existing religion of Baptist

Christianity.

[57] For the reasons discussed above, this Court ho lds that the

aforesaid provision of the village constitution under Paragraph no. 18

thereof that there shall not be any denominational activity dividing the

existing religion, i.e., Baptist Christianity, is unconstitutional and hence

illegal and void, being violative of Articles 25 and 26 of the Constitution of

India.

[58] The petition is accordingly allowed with the above findings,

observations and directions.

ACTING CHIEF JUSTICE

FR/NFR

Sushil