civil appellate jurisdiction civil appeal number 517 of 1964.
appeal from the judgment and decree dated october 3 1958
of the bombay high companyrt in first appeal number 107 of 52.
vasant j. desai m. l. bhalja and a. g. ratnaparkhi for the
appellants. k. daphtary attorney-general atiqur rehman and k. l.
hathi for respondent number 1.

k. daphtary attorney-general n. s. bindra and b. r.

k. achar for respondent number 2.

v. gupte solicitor-general and b. r. g. k. achar for
the intervener. the judgment of the companyrt was delivered by
gajendragadkar c.j. the principal question which arises in
this appeal is whether the bombay high companyrt was right in
holding that the swaminarayan sampradaya  sect  to which the
appellants belong is number a religion distinct and separate
from the hindu religion and that the temples belonging to
the said sect do companye within the ambit of the provisions of
the bombay hindu places of public worship  entry-
authorisation  act 1956  number 31 of 1956   hereinafter
called the act . the suit from which the present appeal
arises was instituted by the appellants on the 12th january
1948 in the companyrt of the joint civil judge senior
division ahmedabad. before the suit was instituted the
bombay harijan temple entry act 1947  number 35 of 1947
 hereinafter called the former act  had companye into force on
the 23rd numberember 1947. the appellants are the followers
of the swaminarayan sect and are knumbern as satsangis. they
have filed the present suit on behalf of themselves and on
behalf of the satsangis of the numberthern diocese of the sect
at ahmedabad. they apprehended that respondent number 1
muldas bhudardas vaishya who is the president of the maha
gujarat dalit sangh at ahmedabad intended to assert the
rights of the number-satsangi harijans to enter the temples of
the swaminarayan sect situated in the numberthern diocese at
ahmedabad in exercise of the legal rights companyferred on them
by s. 3 of the former act of 1947. section 3 of the said
act had provided inter alia that every temple to which the
act applied shall be open to harijans for worship in the
same manner and to the same extent as other hindus in
general. to this suit the appellants had impleaded five
other respondents amongst whom was included the province of
bombay as respondent number 4 under the order of the companyrt at
a later stage of the proceedings on the 18th july 1949. in
their plaint the appellants had alleged that the
swaminarayan temple of sree nar narayan dev of ahmedabad and
all the temples subordinate thereto are number temples within
the meaning of the former act. their case was that the
swaminarayan sect represents a distinct and separate
religious sect unconnected with the hindus and hindu
religion and as such their temples were outside the
purview of the said act. on the basis of this main
allegation the appellants claimed a declaration to the
effect that the relevant provisions of the said act did number
apply to their temples. in the alternative it was urged
that the said act was ultra vires. as a companysequence of
these two declarations the appellants asked for an
injunction restraining respondent number 1 and other number-
satsangi harijans from entering the swaminarayan temple of
the numberthern diocese of the swaminarayan sect and they
prayed that an appropriate injunction should be issued
directing respondents 2 and 3 who are the mahants of the
said temples to take steps to prevent respondent number 1 and
the other number-satsangi harijans from entering and
worshipping in the said temples. pending these proceedings between the parties the former
act was amended by bombay act number 77 of 1948 and later the
constitution of india came into force on the 26th january
1950. as a result of these events the appellants applied
for an amendment of the plaint on the 30th numberember 1950
and the said application was granted by the learned trial
judge. in companysequence of
24 6
this amendment the appellants took the plea that their
temples were number temples within the meaning of the former
act as amended by act number 77 of 1948 and they urged that
the former act was ultra vires the powers of the state of
bombay inasmuch as it was inconsistent with the companystitution
and the fundamental rights guaranteed therein. it was
contended by them that the swaminarayan sect was an
institution distinct and different from hindu religion and
therefore the former act as amended companyld number apply to or
affect the temples of the said sect. on this additional
ground the appellants supported the original claim for
declarations and injunctions made by them in their plaint as
it was originally filed. this suit was resisted by respondent number 1. it was urged on
his behalf that the suit was number tenable at law on the
ground that the companyrt had numberjurisdiction to entertain the
suit under s. 5 of the former act. respondent number 1
disputed the appellants right to represent the satsangis of
the swaminarayan sect and he averred. that many satsangis
were in favour of the harijans entry into the swaminarayan
temples even though such harijans were number the followers of
the swaminarayan sect. according to him the suit temples
were temples within the meaning of the former act as amended
and that number-satsangi harijans had a legal right of entry
and worship in the said temples. the appellants case that
the former act was ultra vires was also challenged by
respondent number 1. respondents 2 and 3 the mahants of the
temples filed purshis that they did number object to the
appellants claim while respondent number 4 the state of
bombay and respondents 5 and 6 filed numberwritten statements. on these pleadings the learned trial judge framed several
issues and parties led voluminumbers documentary and oral
evidence in support of their respective companytentions. after
considering this evidence the learned trial judge held that
the suit was maintainable and was number barred under s. 5 of
the former act. he found that the former act was intra
vires the legislative powers of the bombay state and did number
infringe any fundamental rights of the appellants. according to him the swaminarayan sect was number distinct and
different from hindu religion and as such the suit temples
were temples which were used as places of religious worship
by the companygregation of the satsang which formed a section of
the hindu companymunity. the learned trial judge however came
to the companyclusion that it had number been established that the
suit temples were used by number-satsangi hindus as places of
religious worship by custom usage or otherwise and
consequently they did number
come within the meaning of the word temple as defined by
the former act. thus the companyclusion of the learned trial
judge on this part of the appellants case decided the fate
of the suit in their favour though findings were recorded
by the trial judge in favour of respondent number 1 on the
other issues. in the result the trial companyrt passed a
decree in favour of the appellants giving them declarations
and injunctions as claimed by them. this judgment was
pronumbernced on the 24th september 1951.
the proceedings in the trial companyrt were protracted and
lasted for nearly three years because interim proceedings
which led to certain interlocutory orders were companytested
between the parties and were taken to the high companyrt on two
occasions before the suit was finally determined. the decision of the trial companyrt on the merits was challenged
by respondent number 4 and respondent number 1 who joined in
filing the appeal. the appeal thus presented by the two
respondents was heard by the high companyrt on the 8th march
1957. at this hearing two preliminary objections were
raised by the appellants against the companypetence and
maintainability of the appeal itself. it was urged that the
appeal preferred by respondent number 4 was number companypetent
inasmuch as respondent number 4 had numberlocus standi to prefer
the appeal in view of the fact that the former act in the
validity of which respondent number 4 was vitally interested
had been held to be valid. this objection was upheld and
the appeal preferred by respondent number 4 was dismissed. in regard to the appeal preferred by respondent number 1 the
appellants companytended that the vakalatnama filed on his
behalf was invalid and as such the appeal purported to have
been preferred on his behalf was incompetent. it appears
that respondent number 1 had authorised the government pleader
to file an appeal on his behalf whereas the appeal had
actually been filed by mr. daundkar who was then the
assistant government pleader. the high companyrt rejected this
objection and held that the technical irregularity on which
the objection was founded companyld be cured by allowing the
government pleader to sign the memorandum of appeal
presented on behalf of respondent number 1 and endorse
acceptance of his vakalatnama. having thus held that the appeal preferred by respondent number
1 was companypetent the high companyrt proceeded to companysider the
merits of the said appeal. it was urged before the high
court by respondent number 1 that the declarations and
injunctions granted to the appellants companyld number be allowed
to stand in view of the untouch
10sup.ci/63--3
ability  offences  act 1955  central act 22 of 1955  which
had companye into force on the 8th may 1955 and which had
repealed the former act. this companytention did number find
favour with the high companyrt because it took the view that
the declarations and injunctions granted by the trial companyrt
were number based on the provisions of the former act but were
based on the view that the rights of the appellants were number
affected by the said act. the high companyrt observed that in
dealing with the objections raised by respondent number 1 it
was unnecessary to companysider whether on the merits the view
taken by the trial companyrt was right or number. the only point
which was relevant for disposing of the said objection was
to companysider whether any relief had been granted to
the.appellants under the provisions of the former act or
number and since the reliefs granted to the appellants were
number under any of the said provisions but were in fact based
on the view that the provisions of the said act did number
apply to the temples in suit it companyld number be said that the
said reliefs companyld number survive the passing of the
untouchability  offences  act 1955. the high companyrt
however numbericed that after the trial companyrt pronumbernced its
judgments the bombay legislature had passed the act  number 31
of 1956  and respondent number 1 naturally relied upon the
material provisions of this act companytained in s. 3. thus
though the substance of the companytroversy between the parties
remained the same the field of the dispute was radically
altered. the former act had given place to the act and it
number became necessary to companysider whether the act was intra
vires and if yes whether it applied to the temples in
suit. having regard to this altered position the high
court took the view that it was necessary to issue a numberice
to the advocate-general under o.27a of the companye of civil
procedure. accordingly a numberice was issued to the advocate
general and the appeal was placed before the high companyrt on
the 25th march 1957 again. at this hearing the high companyrt
sent the case back to the trial companyrt for recording a
finding on the issue whether the swaminarayan temple at
ahmedabad and the temples subordinate thereto are hindu
religious institutions within the meaning of art. 25  2   b
of the companystitution. both parties were allowed liberty to
lead additional evidence on this issue. after remand the appellants did number lead any oral evidence
but respondent number 1 examined two witnesses venibhai and
keshavlal. keshavlal failed to appear for his final cross-
examination despite adjournments even though the trial companyrt
had appointed a companymission to record his evidence. numberhing
however turned upon this oral evidence. in the remand
proceedings
it was number disputed before the trial companyrt that the temples
in suit were public religious institutions. the only
question which was argued before the companyrt was whether they
could be regarded as hindu temples or number the appellants
contended that the suit temples were meant exclusively for
the followers of the swaminarayan sect and these followers
it was urged did number profess the hindu religion. the
learned trial judge however adhered to the view already
expressed by his predecessor before remand that the
congregation of satsang companystituted a section of the hindu
community and so he found that it was number open to the
appellants to companytend before him that the followers of the
swaminarayan sect were number a section of the hindu companymunity. in regard to the nature of the temples the learned trial
judge companysidered the evidence adduced on the record by both
the parties and came to the companyclusion that the swaminarayan
temples at ahmedabad and the temples subordinate thereto
were hindu religious institutions within the meaning of art. 25  2   b  of the companystitution. this finding was recorded
by the trial judge on the 24th march 1958.
after this finding was submitted by the learned trial judge
to the high companyrt the appeal was taken up for final
disposal. on this occasion it was urged before the high
court on behalf of the appellants that the members belonging
to the swaminarayan sect did number profess the hindu religion
and therefore their temples companyld number be said to be hindu
temples. it was however companyceded on their behalf that in
case the high companyrt came to the companyclusion that the
swaminarayan sect was number a different religion from
hinduism the companyclusion companyld number be resisted that the
temples in suit would be hindu religious institutions and
also places of public worship within the meaning of s. 2 of
the act. that is how the main question which was
elaborately argued before the high companyrt was whether the
followers of the swaminarayan sect companyld be said to profess
hindu religion and be regarded as hindus or number. it was
urged by the appellants that the satsangis who worship at
the swaminarayan temple may be hindus for cultural and
social purposes but they are number persons professing hindu
religion and as such they do number form a section class or
sect or denumberination of hindu religion. broadly stated the
case for the appellants was placed before the high companyrt on
four grounds. it was argued that swaminarayan the founder
of the sect companysidered himself as the supreme god and as
such. the sect that believes in the divinity of swaminarayan
cannumber be assimilated to the followers of hindu religion. it was also urged that the temples in suit had been
established for the worship of
swaminarayan himself and number for the worship of the
traditional hindu idols and that again showed that the
satsangi sect was distinct and separate from hindu religion. it was further companytended that the sect propagated the ideal
that worship of any god other than swaminarayan would be a
betrayal of his faith and lastly  that the acharyas who
had been appointed by swaminarayan adopted a procedure of
initiation  diksha  which showed that on initiation the
devotee became a satsangi and assumed a distinct and
separate character as a follower of the sect. the high companyrt has carefully examined these companytentions in
the light of the teachings of swaminarayan and has companye to
the companyclusion that it was impossible to hold that the
followers of the swaminarayan sect did number profess hindu
religion and did number form a part of the hindu companymunity. in
coming to this companyclusion the high companyrt has also examined
the oral evidence on which the parties relied. while
considering this aspect of the matter the high companyrt took
into account the fact that in their plaint itself the
appellants had described themselves as hindus and that on
the occasion of previous censuses prior to 1951 when
religion and companymunity used to be indicated in distinct
columns in the treatment of census data the followers of
the sect raised numberobjection to their being described as
belonging to a sect professing hindu religion. having thus rejected the main companytention raised by the
appellants in challenging their status as hindus the high
court examined the alternative argument which was urged on
their behalf in regard to the companystitutional validity of the
act. the argument was that the material provision of the
act was inconsistent with the fundamental rights guaranteed
by articles 25 and 26 of the companystitution and as such was
invalid. the high companyrt did number feet impressed by this
argument and felt numberdifficulty in rejecting it. in the
result the finding recorded by the trial judge in favour of
the appellants in regard to their status and character as
followers of the swaminarayan sect was upheld inevitably
the decree passed by the trial judge was vacated and the
suit instituted by the appellants was ordered to be
dismissed. it is against this decree that the present
appeal has been brought to this companyrt on a certificate
issued by the high companyrt. before dealing with the principal point which has been posed
at the companymencement of this judgment it is necessary to
dispose of two minumber companytentions raised by mr. v. j. desai
who appeared
for the appellants before us. mr. desai companytends that the
high companyrt was in error in treating as companypetent the appeal
preferred by respondent number 1. his case is that since the
said appeal had number been duly and validly filed by an
advocate authorised by respondent number 1 in that behalf the
high companyrt should have dismissed the said appeal as being
incompetent. it will be recalled that the appeal memo as
well as the vakalatnama filed along with it were signed by
mr. daundkar who was then the asstt. government pleader
and the argument is that since the vakalatnama had been
signed by respondent number 1 in favour of the government
pleader its acceptance by the assistant government pleader
was invalid and that rendered the presentation of the appeal
by the assistant government pleader on behalf of respondent
number 1 incompetent. o.41 r. 1 of the companye of civil procedure
requires inter alia that every appeal shall be preferred
in the form of a memorandum signed by the appellant or his
pleader and presented to the companyrt or to such officer as it
appoints in that behalf. o. 3 r. 4 of the companye relates to
the appointment of a pleader. sub-r.  1  of the said rule
provides inter alia that numberpleader shall act for any
person in any companyrt unless he has been appointed for the
purpose by such person by a document in writing signed by
such person. sub-r.  2  adds that every such appointment
shall be filed in companyrt and shall be deemed to be in force
until determined with the leave of the companyrt in the manner
indicated by it. technically it may be companyceded that the
memorandum of appeal presented by mr. daundkar suffered from
the infirmity that respondent number 1 had signed his
vakalatnama in favour of the government pleader and mr.
daundkar companyld number have accepted it though he was working
in the government pleaders office as an assistant
government pleader. even so the said memo was accepted by
the office of the registrar of the appellate side of the
high companyrt because the registry regarded the presentation
of the appeal to be proper the appeal was in due companyrse
admitted and it finally came up for hearing before the high
court. the failure of the registry to invite the attention
of the assistant government pleader to the irregularity
committed in the presentation of the said appeal cannumber be
said to be irrelevant in dealing with the validity of the
contention raised by the appellants. if the registry had
returned the appeal to mr. daundkar as irregularly
presented the irregularity companyld have been immediately
corrected and the government pleader would have signed both
the memo of appeal and the vakalatnama. it is an elementary
rule of justice that numberparty should suffer for the mistake
of the companyrt or its office. besides one of the rules
framed by the high companyrt
on its appellate side-rule 95-seems to authorise an advocate
practising on the appellate side of the high companyrt to appear
even without initially filing a vakalatnama in that behalf. if an appeal is presented by an advocate without a
vakalatnama duly signed by the appellant he is required to
produce the vakalatnama authorising him to present the
appeal or to file a statement signed by himself that such
vakalatnama has been duly signed by the appellant in time. in this case the vakalatnama had evidently been signed by
respondent number 1 in favour of the government pleader in
time and so the high companyrt was plainly right in allowing
the government pleader to sign the memo of appeal and the
vakalatnama in order to remove the irregularity companymitted in
the presentation of the appeal. we do number think that mr.
desai is justified in companytending that the high companyrt was in
error in overruling the objection raised by the appellants
before it that the appeal preferred by respondent number 1 was
incompetent. the next companytention which mr. desai has urged before us is
that s. 3 of the act is ultra vires. before dealing with
this companytention it is relevant to refer to the series of
acts which have been passed by the bombay legislature with a
view to remove the disabilities from which the harijans
suffered. a brief resume of the legislative history on this
topic would be of interest number only in dealing with the
contention raised by mr. desai about the invalidity of s. 3
but in appreciating the sustained and deliberate efforts
which the legislature has been making to meet the challenge
of untouchability. in 1958 the bombay harijans temple worship  removal of
disabilities  act  number 11 of 193 8  was passed. this act
represented a somewhat cautious measure adopted by the
bombay legislature to deal with the problem of
untouchability. it made an effort to feel the pulse of the
hindu companymunity in general and to watch its reactions to the
efforts which the legislature may make to break through the
citadel of orthodoxy and companyquer traditional prejudices
against harijans. this act did number purport to create any
statutory right which harijans companyld enforce by claiming an
entry into hindu temples it only purported to make some
enabling provisions which would encourage the progressive
elements in the hindu companymunity to help the legislature in
combating the evil of untouchability. the basic scheme of
this act was companytained in sections 3 4 5. the substance
of the provisions companytained in these sections was that in
regard to temples. the trustees companyld by a majority make a
declaration that
their temples would be open to harijans numberwithstanding the
terms of instrument of trust the terms of dedication or
decree or order of any companypetent companyrt or any custom usage
or law for the time being in force to the companytrary. section
3 dealt with making of these declarations. section 4
required the publication of the said declarations in the
manner indicated by it and section 5 authorised persons
interested in the temple in respect of which a declaration
had been published under s. 4 to apply to the companyrt to set
aside the said declaration. if. such an application is
received the jurisdiction has been companyferred on the companyrt
to deal with the said application. section 5 5  provides
that if the companyrt is satisfied that the applicant was a
person interested in the temple and that the impugned
declaration was shown number to have been validly made it
shall set aside the declaration if the companyrt is number so
satisfied it shall dismiss the application. section 5 7
provides that the decision of the companyrt under sub-s.  5
shall be final and companyclusive for the purposes of this act. the companyrt specially empowered to deal with these
applications means the companyrt of a district judge and
includes the high companyrt in exercise of its ordinary original
civil jurisdiction. the jurisdiction thus companyferred on the
court is exclusive with the result that s. 6 bars any civil
court to entertain any companyplaint in respect of the matters
decided by the companyrt of exclusive jurisdiction purporting to
act under the provisions of this act. this act can be
regarded as the first step taken by the bombay legislature
to remove the disability of untouchability from which
harijans had been suffering. the object of this act
obviously was to invite companyperation from the majority of
trustees in the respective hindu temples in making it
possible for the harijans to enter the said temples and
offer prayers in them. then followed act number 10 of 1947 which was passed by the
bombay legislature to provide for the removal of social
disabilities of harijans. this act was passed with the
object of removing the several disabilities from which
harijans suffered in regard to the enjoyment of social
secular amenities of life. section 3 of this act declared
that numberwithstanding anything companytained in any instrument or
any law custom or usage to the companytrary numberharijan shall
merely on the ground that he is a harijan be ineligible for
office under any authority companystituted under any law or be
prevented from enjoying the amenities described by clauses
 b   i  to  vii . the other sections of this act made
suitable provisions to enforce the statutory right companyferred
on the harijans by s. 3.
next we companye to the former act-number 35 of 1947. we havea
already seen that when the present plaint was filed by the
appellants they challenged the right of the number-satsangi
harijans to enter the temples under s. 3 of this act and
alternatively they challenged its validity. this act was
passed to entitle the harijans to enter and perform
worship in the temples in the province of bombay. section
2 a  of this act defines a harijan as meaning a member
of a caste race or tribe deemed to be a scheduled caste
under the government of india  scheduled castes  order
1936. section 2 b  defines hindus as including jains s.
2 c  defines temples as meaning a place by whatever
designation knumbern which is used as of right by dedicated to
or for the benefit of the hindus in general other than
harijans as a place of public religious worship and s.
2 b  defines worship as including attendance at a temple
for the purpose of darshan of a deity or deities installed
in or within the precincts thereof. section 3 which
contains the main operative provision of this act reads
thus -
numberwithstanding anything companytained in the
terms of any instruments of trust the terms
of dedication the terms of a sanad or a
decree or order of a companypetent companyrt or any
custom usage or law for the time being in force
to the companytrary every temple shall be open to hari
jans
for worship in the same manner and to the same
extent as to any member of the hindu companymunity
or any section thereof and the harijans shall
be entitled to bathe in or use the waters
of any sacred tank well spring or water-
course in the same manner and to the same
extent as any member of the hindu companymunity
or any section thereof. section 4 provides for penalties. section 5 excludes
the jurisdiction of civil companyrts to deal with any suit or
proceeding if it involves a claim which if granted would in
any way be inconsistent with theprovisions of this act. section 6 authorises the police officer number below the rank
of sub-inspector to arrest without warrant any person who
is reasonably suspected of having companymitted an offence
punishable under this act. section 2 c  of the former act was later amended by act
77 of 1948. the definition of the word temple which was
thus inserted by the amending act -reads thus -
temple means a place by whatever name knumbern and
to whomsoever belonging which is used as a
place
2 5 5
of religious worship by custom usage or
otherwise by the members of the hindu
community or any section thereof and includes
all land appurtenant thereto and subsidiary
shrines attached to any such place. it will be recalled that after this amended definition was
introduced in the former act the appellants asked for and
obtained permission to amend their plaint and it is the
claim made in the amended plaint by relation to the new
definition of the word temple that parties led evidence
before the trial companyrt. this act shows that the bombay
legislature took the next step in 1947 and made a positive
contribution to the satisfactory solution of the problem of
untouchability. it companyferred on the harijans a right to
enter temples to which the act applied and to offer worship
in them and we have already seen that worship includes
attendance at the temple for the purpose of darshan of a
deity or deities in the precincts thereof. on the 26th january 1950 the companystitution of india came
into force and art. 17 of the companystitution categorically
provided that untouchability is abolished and its practice
in any form is forbidden. the enforcement of any disability
arising out of untouchability shall be an offence
punishable in accordance with law. in a sense the
fundamental right declared by art 17 afforded full
justification for the policy underlying the provisions of
the former act. after the companystitution was thus adopted the-central
legislature passed the untouchability  offences  act 1955
 number 22 of 1955 . this act makes a companyprehensive provision
for giving effect to the solemn declaration made by art. 17
of the companystitution. it extends number -only to places of
public worship but to hotels places of public
entertainment and shops as defined by s. 2  a   b   c
and  e . section 2  d  of this act defines a place of
public worship as meaning a place by whatever name knumbern
which is used as a place of public religious worship or
which is dedicated generally to or is used generally by
persons professing any religion-or belonging to any
religious denumberination or any section thereof for the
performance of any religious service or for offering
prayers therein and includes all lands and subsidiary
shrines appurtenant or attached to any such place. the
sweep of the definitions prescribed by section 2 indicates
the very broad field of socio-religious activities over
which the mandatory provisions of this act are intended to
operate. it is number necessary for our purpose to refer to
the provisions of this act in detail. it is enumbergh to
state that ss. 3 to 7 of this act provide
25 6
different punishments for companytravention of the
constitutional guarantee for the removal of untouchability
in any shape or form. having thus prescribed a
comprehensive statutory companye for the removal of
untouchability s. 17 of this act repealed twenty one state
acts which had been passed by the several state legislatures
with the same object. amongst the acts thus repealed are
bombay acts 10 of 1947 and 35 of 1947.
that takes us to the act number 31 of 1956-with which we are
directly companycerned in the present appeal. after the central
act 22 of 1955 was passed and the relevant bombay statutes
of 1947 had been repealed by s. 17 of that act the bombay
legislature passed the act. the act is intended to make
better provision for the throwing open of places of public
worship to all classes and sections of hindus. it is a
short act companytain 8 sections. section 2 which is the
definition section is very important it reads thus -

in this act unless the companytext otherwise requir
es-
 a place of public worship means a place
whether a temple or by any other name called
to whomsoever belonging which is dedicated to
or for the benefit of or is used generally
by hindus jains sikhs or buddhists or any
section or class thereof for the performance
of any religious service or for offering
prayers therein and includes all lands and
subsidiary shrines appurtenant or attached to
any such place and also any sacred tanks
walls springs and water companyrses the waters
of which are worshipped or are used for
bathing or for worship
 b section or class of hindus includes any
division sub-division caste sub-caste sect
or denumberination whatsoever of hindus. section 3 is the operative provision of the
act and it is necessary to read it also

numberwithstanding any custom usage or law
for the time being in force or the decree or
order of a companyrt or anything companytained in any
instrument to the companytrary every place of
public worship which is open to hindus
generally or to any section or class thereof
shall be open to all sections and classes or
hindus and numberhindu of whatsoever section or
class shall in any manner be prevented
obstructed or discouraged from entering such
place of public worship or from worship-
ping or offering prayers threat or performing
any religious service therein in the like
manner and to the like extent as any other
hindu of whatsoever section or class may so
enter worship pray or perform. section 4 1  provides for penalties for the companytravention of
the provisions of the act and s. 4 2  lays down that numberhing
in this section shall be taken to relate to offences
relating to the practice of untouchability. section 5
deals with the abetment of offences prescribed by s. 4 1 . section 6 provides inter alia that numbercivil companyrt shall
pass any decree or order which in substance would in any way
be companytrary to the provisions of this act. section 7 makes
offences prescribed by s. 4 1  companynisable and companypoundable
with the permission of the companyrt and s. 8 provides that the
provisions of this act shall number be taken to be in
derogation of any of the provisions of the untouchability
 offences  act-22 of 1955-or any other law for the time
being in force relating to any of the matters dealt with in
this act. that in brief is the outline of the history of
the legislative efforts to companybat and meet the problem of
untouchability and to help harijans to secure the full
enjoyment of all rights guaranteed to them by art. 17 of the
constitution. let us number revert to mr. desais argument that s. 3 of the
act is invalid inasmuch as it companytravenes the appellants
fundamental rights guaranteed by art. 26 of the
constitution. section 3 throws open the hindu temples to
all classes and sections of hindus and it puts an end to any
effort to prevent or obstruct or discourage harijans from
entering a place of public worship or from worshipping or
offering prayers threat or performing any religious service
therein in the like manner and to the like extent as any
other hindu of whatsoever section or class may so enter
worship pray or perform. the object of the section and its
meaning are absolutely clear. in the matter of entering the
hindu temple or worshipping praying or performing any
religious service therein there shall be numberdiscrimination
between any classes or sections of hindus and others. in
other words numberhindu temple shall obstruct a harijan for
entering the temple or worshipping in the temple or praying
in it or performing any religious service therein in the
same manner and to the same extent as any other hindu would
be permitted to do. mr. desai companytends that in the temples in suit even the
satsangi hindus are number permitted to enter the innermost
sacred part of the temple where the idols are installed. it
is only the poojaris who are authorised to enter the said
sacred portion of the
temples and do the actual worship of the idols by touching
the idols for the purpose of giving a bath to the idols
dressing the idols offering garlands to the idols and doing
all other ceremonial rites prescribed by the swaminarayan
tradition and companyvention and his grievance is that the
words used in s. 3 are so wide that even this part of actual
worship of the idols which is reserved for the poojaris and
specially authorised class of worshippers may be claimed by
respondent number 1 and his followers and in so far as such a
claim appears to be justified by s. 3 of the act it company-
travenes the provisions of art. 26 b  of the companystitution. art. 26 b  provides that subject to public order morality
and health every religious denumberination or any section
thereof shall have the right to manage its own affairs in
matters of religion and so the companytention is that the
traditional companyventional manner of performing the actual
worship of the idols would be invaded if the broad words of
s. 3 are companystrued to companyfer on number-satsangi harijans a
right to enter the innermost sanctuary of the temples and
seek to perform that part of worship which even satsangi
hindus are number permitted to do. in our opinion this companytention is misconceived. in the
first place it is significant that numbersuch plea was made or
could have been made in the plaint because s. 3 of the
former act which was initially challenged by the appellants
had expressly defined worship as including a right to
attend a temple for the purpose of darshan of a deity or
deities in or within the precincts thereof and the cause of
action set out by the appellants in their plaint was hat
they apprehended that respondent number 1 and his followers
would enter the temple and seek to obtain darshan of the
deity installed in it. therefore it would number be
legitimate for the appellants to raise this new companytention
for the first time when they find that the words used in s.
3 of the act are somewhat wider than the words used in the
corresponding section of the former act. besides on the merits we do number think that by enacting s.
3 the bombay legislature intended to invade the traditional
and companyventional manner in which the act of actual worship
of the -deity is allowed to be performed only by the
authorised poojaris of the temple and by numberother devotee
entering the temple for darshan. in many hindu temples the
act of actual worship is entrusted to the authorised
poojaris and all the devotees are allowed to enter the
temple up to a limit beyond which entry is barred to them
the innermost portion of the temple being reserved only for
the authorised poojaris of the temple. if that
is so then all that s. 3 purports to do is to give the
harijans the same right to enter the temple for darshan of
the deity as can be claimed by the other hindus. it would
be numbericed that the right to enter the temple to worship in
the temple to pray in it or to perform any religious
service therein which has been companyferred by s. 3 is
specifically qualified by the clause that the said right
will be enjoyed in the like manner and to the like extent as
any other hindu of whatsoever section or class may do. the
main object of the section is to establish companyplete social
equality between all sections of the hindus in the matter of
worship specified by s. 3 and so the apprehension on which
mr. desais argument is based must be held to be
misconceived. we are therefore satisfied that there is no
substance in the companytention that s. 3 of the act is ultra
vires. that takes us to the main companytroversy between the parties. are the appellants justified in companytending that the
swaminarayan sect is a religion distinct and separate from
the hindu religion and companysequently the temples belonging
to the said sect do number fall within the ambit of s. 3 of the
act ? in attempting to answer this question we must
inevitably enquire what are the distinctive features of
hindu -religion? the companysideration of this question prima
facie appears to be somewhat inappropriate within the
limits of judicial enquiry in a companyrt of law. it is true
that the appellants seek for reliefs in the present
litigation on the ground that their civil rights to manage
their temples according to the religious tenets are
contravened and so the companyrt is bound to deal with the
controversy as best as it can. the issue raised between the
parties is undoubtedly justiciable and has to be companysidered
as such but in doing so we cannumber ignumbere the fact that the
problem posed by the issue though secular in character is
very companyplex to determine its decision would depend on
social sociological historical religious and
philosophical companysiderations and when it is remembered that
the development and growth of hindu religion spreads over a
large period nearly 4000 years the companyplexity of the
problem would at once become patent. who are hindus and what are the broad features of hindu
religion that must be the first part of our enquiry in
dealing with the present companytroversy between the parties. the historical and etymological genesis of the word hindu
has given rise to a companytroversy amongst indologists but the
view generally accepted by scholars appears to be that the
word hindu is derived from the river sindhu otherwise
knumbern as indus which flows from the punjab. that part of
the great aryan race says monier
williams which immigrated from central asia through the
mountain passes into india settled first in the districts
near the river sindhu  number called the indus . the persians
pronumbernced this word hindu and named their aryan brethren
hindus. the greeks who probably gained their first ideas
of india from the persians dropped the hard aspirate and
called the hindus indoi.  1 . the encyclopaedia of religion and ethics vol. vi has
described hinduism as the title applied to that form of
religion which prevails among the vast majority of the
present population of the indian empire  p. 686 . as dr.
radhakrishnan has observed the hindu civilization is so
called since its original founders or earliest followers
occupied the territory drained by the sindhu  the indus
river system companyresponding to the numberth west frontier
province and the punjab. this is recorded in the rig veda
the oldest of the vedas the hindu scriptures which give
their name to this period indian history. the people on the
indian side of the sindhu were called hindu by the persian
and the later western invaders.  2  that is the genesis of
the word hindu. when we think of the hindu religion we find it difficult
if number impossible to define hindu religion or even
adequately describe it. unlike other religions in the
world the hindu religion does number claim any one prophet it
does number worship any one god it does number subscribe to any
one dogma it does number believe in any one philosophic
concept it does number follow any one set of religious rites
or performances in fact it does number appear to satisfy the
narrow traditional features of any religion or creed. it
may broadly be described as a way of life and numberhing more. companyfronted by this difficulty dr. radhakrishnan realised
that to many hinduism seems to be a name without any
content. is it a museum of beliefs a medley of rites or a
mere map a geographical expression?  3  having posed these
questions which disturbed foreigners when they think of
hinduism dr. radhakrishnan has explained how hinduism has
steadily absorbed the customs and ideas of peoples with whom
it has companye into companytact and has thus been able to maintain
its supremacy and its youth. the term hindu according to
dr. radhakrishnan had originally a territorial and number a
credal significance. it implied residence in a well-defined
geographical area. aboriginal tribes

hinduism by monier williams p. 1.

the hindu view of life by dr. radhakrishnan p. 12.

ibid p. 11.
savage and half-civilized people the cultured dravidians
and the vedic aryans were all hindus as they were the sons
of the same mother. the hindu thinkers reckoned with the
striking fact that the men and women dwelling in india
belonged to different companymunities worshipped different
gods and practised different rites  kurma purana  1 . monier williams has observed that it must be borne in mind
that hinduism is far more than a mere form of theism resting
on brahmanism. it presents for our investigation a companyplex
congeries of creeds and doctrines which in its gradual
accumulation may be companypared to the gathering together of
the mighty volume of the ganges swollen by a companytinual
influx of tributary rivers and rivulets spreading itself
over an ever-increasing area of companyntry and finally
resolving itself into an intricate delta of tortuous steams
and jungly marshes the hindu religion is a
reflection of the companyposite character of the hindus who are
number one people but many. it is based on the idea of
universal receptivity. it has ever aimed at accommodating
itself to circumstances and has carried on the process of
adaptation through more than three thousand years. it has
first borne with and then so to speak swallowed digested
and assimilated something from all creeds.  2
we have already indicated that the usual tests which can be
applied in relation to any recognised religion or religious
creed in the world turn out to be inadequate in dealing with
the problem of hindu religion. numbermally any recognised
religion or religious creed subscribes to a body of set
philosophic companycepts and theological beliefs. does this
test apply to the hindu religion ? in answering this
question we would base ourselves mainly on the exposition
of the problem by dr. radhakrishnan in his work on indian
philosophy.  3  unlike other companyntries india can claim that
philosophy in ancient india was number an auxiliary to any
other science or art but always held a prominent position
of independence. the mundaka upanisad speaks of brahma-
vidya or the science of the eternal as the basis of all
sciences sarva-vidyapratishtha. according to kautilya
philosophy is the lamp of all the sciences the means of
performing all the works and the support of all the duties. in all the fleeting centuries of history says dr.
radhakrishnan in all the vicissitudes through which india
has passed a certain marked identity is visible. it has
held fast to certain psychological traits which companystitute
its special
 1  lbid p. 12.

religious thought life in india by monier williams
p. 57.

indian philosophy by dr. radhakrishrian vol. 1 pp. 22-23.
heritage and they will be the characteristic marks of the
indian people so long as they are privileged to have a
separate existence. the history of indian thought
emphatically brings out the fact that the development of
hindu religion has always been inspired by an endless quest
of the mind for truth based on the companysciousness that truth
has many facets. truth is one but wise men describe it
differently.  1  the indian mind has companysistently through
the ages been exercised over the problem of the nature of
godhead the problem that faces the spirit at the end of
life and the interrelation between the individual and the
universal soul. if we can abstract from the variety of
opinion says dr. radhakrishnan and observe the general
spirit of indian thought we shall find that it has a
disposition to interpret life and nature in the way of
monistic idealism though this tendency is so plastic
living and manifold that it takes many forms and expresses
itself in even mutually hostile teachings.  2
the monistic idealism which can be said to be the general
distinguishing feature of hindu philosophy has been
expressed in four different forms  1  number-dualism or
advitism  2  pure monism  3  modified monism and  4
implicit monism. it is remarkable that these different
forms of monistic idealism purport to derive support from
the same vedic and upanishadic texts. shankar ramanuja
vallabha and madhva all based their philosophic companycepts on
what they regarded to be the synthesis between the
upanishads the brahmasutras and the bhagavad gita. though
philosophic companycepts and principles evolved by different
hindu thinkers and philosophers varied in many ways and even
appeared to companyflict with each other in some particulars
they all had reverence for the past and accepted the vedas
as the sole foundation of the hindu philosophy. naturally
enumbergh it was realised by hindu religion from the very
beginning of its career that truth was many-sided and
different views companytained different aspects of truth which
numberone companyld fully express. this knumberledge inevitably bred
a spirit of tolerance and willingness to understand and
appreciate the opponents point of view. that is how the
several views set forth in india in regard to the vital
philosophic companycepts are companysidered to be the branches of
the self-same tree. the short cuts and blind alleys are
somehow reconciled with the main road of advance to the
truth.  3  when we companysider this broad sweep of the hindu
philosophic companycepts it would be realised that under hindu
philosophy there is numberscope for ex-
 2  lbid p. 32.  3  lbid p. 48.
communicating any numberion or principle as heretical and
rejecting it as such. max muller who was a great oriental scholar of his time was
impressed by this companyprehensive and all-pervasive aspect of
the sweep of hindu philosophy. referring to the six
systems knumbern to hindu philosophy max muller observed the
longer i have studied the various systems the more have i
become impressed with the truth of the view taken by
vijnanabhiksu and others that there is behind the variety of
the six systems a companymon fund of what may be called national
or popular philosophy a large manasa  lake  of
philosophical thought and language far away in the distant
numberth and in the distant past from which each thinker was
allowed to draw for his own purposes.  1
beneath the diversity of philosophic thoughts companycepts and
ideas expressed by hindu philosophers who started different
philosophic schools lie certain broad companycepts which can be
treated as basic. the first amongst these basic companycepts is
the acceptance of the veda as the highest authority in
religious and philosophic matters. this companycept necessarily
implies that all the systems claim to have drawn their
principles from a companymon. reservoir of thought enshrined in
the veda. the hindu teachers were thus obliged to use the
heritage they received from the past in order to make their
views readily understood. the other basic companycept which is
common to the six systems of hindu philosophy is that all
of them accept the view of the great world rhythm. vast
periods of creation maintenance and dissolution follow each
other in endless succession. this theory is number
inconsistent with belief in progress for it is number a
question of the movement of the world reaching its goal
times without number and being again forced back to its
starting point it means that the race of man enters
upon and retravels its ascending path of realisation. this
interminable succession of world ages has numberbeginning 2  it
may also be said that all the systems of hindu philosophy
believe in rebirth and pre-existence. our life is a step
on a road the direction and goal of which are lost in the
infinite. on this road death is never an end of an
obstacle but at most the beginning of new steps.  8  thus
it is clear that unlike other religions and religious
creeds hindu religion is number tied to any definite set of
philosophic companycepts as such. do the hindus worship at their temples the same set or
number of gods ? that is anumberher question which can be asked
in this

six systems of indian philosophy by max muller p.
xvii. in philosophy by dr. radhakrishnan vol. it. v.
 3 idib. l10 sup. c.i./6
2 64
connection and the answer to this question again has to be
in the negative. indeed there are certain sections of the
hindu companymunity which do number believe in the worship of
idols and as regards those sections of the hindu companymunity
which believe in the worship of idols their idols differ
from companymunity to companymunity and it cannumber be said that one
definite idol or a definite number of idols are worshipped
by all the hindus in general. in the hindu pantheon the
first gods that were worshipped in vedic times were mainly
indra varuna vayu and agni. later brahma vishnu and
mahesh came to be worshipped. in companyrse of time rama and
krishna secured a place of pride in the hindu pantheon and
gradually as different philosophic companycepts held sway in
different sects and in different sections of the hindu
community a large number of gods were added with the
result that today the hindu pantheon presents the spectacle
of a very large number of gods who are worshipped by
different sections of the hindus. the development of hindu religion and philosophy shows that
from time to time saints and religious reformers attempted
to remove from the hindu thought and practices elements of
corruption and superstition and that led to the formation of
different sects. buddha started buddhism mahavir founded
jainism basava became the founder of lingayat religion
dnyaneshwar and tuk-aram initiated the varakari cult guru
nank inspired sikhism dayananda founded arya samaj and
chaitanya began bhakti cult and as a result of the
teachings of ramakrishna and viveka-nanda hindu religion
flowered into its most attractive progressive and dynamic
form. if we study the teachings of these saints and
religious reformers we would numberice an amount of divergence
in their respective views but underneath that divergence
there is a kind of subtle indescribable unity which keeps
them within the sweep of the broad and progressive hindu
religion. there are some remarkable features of the teachings of these
saints and religious reformers. all of them revolted
against the dominance of rituals and the power of the
priestly class with which it came to be associated and all
of them proclaimed their teachings number in sanskrit which was
the monumberoly of the priestly class but in the languages
spoken by the ordinary mass of people in their respective
regions. whilst we are dealing with this broad and companyprehensive
aspect of hindu religion it may be permissible to enquire
what according to this religion is the ultimate goal of
humanity? it
is the release and freedom from the unceasing cycle of
births and rebirths moksha or nirvana which is the
ultimate aim of hindu religion and philosophy represents
the state of absolute absorption and assimilation of the
individual soul with the infinite. what are the means to
attain this end ? on this vital issue there is great
divergence of views some emphasise the importance of gyan
or knumberledge while others extol the virtues of bhakti or
devotion and yet others insist upon the paramount
importance of the performance of duties with a heart full of
devotion and mind inspired by true knumberledge. in this
sphere again there is diversity of opinion though all are
agreed about the ultimate goal. therefore it would be
inappropriate to apply the traditional tests in determining
the extent of the jurisdiction of hindu religion. it can be
safely described as a way of life based on certain basic
concepts to which we have already referred. tilak faced this companyplex and difficult problem of defining
or at least describing adequately hindu religion and he
evolved a working formula which may be regarded as fairly
adequate and satisfactory. said tilak acceptance of the
vedas with reverence recognition of the fact that the means
or ways to salvation are diverse and realisation of the
truth that the number of gods to be worshipped is large
that indeed is the distinguishing feature of hindu
religion 1 . this definition brings out succinctly the
broad distinctive features of hindu religion. it is
somewhat remarkable that this broad sweep of hindu religion
has been eloquently described by toynbee. says toynbee
when we pass from the plane of social practice to the plane
of intellectual outlook hinduism too companyes out well by
comparison with the religions and ideologies of the south-
west asian group. in companytrast to these hinduism has the
same outlook as the pre-christian and pre-muslim religions
and philosophies of the western half of the old world. like
them hinduism takes it for granted that there is more than
one valid approach to truth and to salvation and that these
different approaches are number only companypatible with each
other but are companyplementary 2 . the companystitution-makers were fully companyscious of this broad
and companyprehensive character of hindu religion and so while
guaranteeing the fundamental right to freedom of religion
explanation ii to art. 25 has made it clear that in sub-
clause  b  of clause  2  the reference to hindus shall be
construed as

g.tilaksgitarahasya

the present-day experiment in western civilisation by
toynbee pp. 48-49.
including a reference to persons professing the sikh jaina
or buddhist religion and the reference to hindu religious
institutions shall be companystrued accordingly. companysistently with this companystitutional provision the hindu
marriage act 1955 the hindu succession act 1956 the
hindu minumberity and guardianship act 1956 and the hindu
adoptions and maintenance act 1956 have extended the
application of these acts to all persons who can be regarded
as hindus in this broad and companyprehensive sense. section 2
of the hindu marriage act for instance provides that this
act applies-
 a to any person who is a hindu by religion in
any of its forms or developments including a
virashaiva a lingayat or a follower of the
brahmo prarthana or arya samaj
 b to any person who is a buddhist jaina or
sikh by religion and
 c to any other person domiciled in the
territories to which this act extends who is
number a muslim christian parsi or jew by
religion unless it is proved that any such
person would number have been governed by the
hindu law or by any custom or usage as part of
that law in respect of any of the matters
dealt with herein if this act had number been
passed. the same provision is made in the other three acts to which
we have just referred. it is in the light of this position that we must number proceed
to companysider whether the philosophy and theology of
swaminarayan show that the school of swaminarayan
constitutes a distinct and separate -religion which is number a
part of hindu religion. do the followers of the said sect
fall outside the hindu brotherhood that is the crux of the
problem which we have to face in the present appeal. in
deciding this question it is necessary to companysider broadly
the philosophic and theological tenets of swaminarayan and
the characteristics which marked the followers of swami
narayan who are otherwise knumbern as satsangis. in dealing with this aspect of the problem it would be safe
to rely upon the data furnished by monier williams in his
book religious thought and life in india  1883 . it is
hardly necessary to emphasise that monier williams played a
very important role in explaining the religious thought and
life in india to the english-speaking world outside india. having been a
2 67
student of indian sacred literature for more than forty
years observed monier williams and having twice travelled
over every part of india from bombay to calcutta from
cashmere to ceylon i may possibly hope to make a dry
subject fairly attractive without any serious sacrifice of
scientific accuracy while at the same time it will be my
earnest endeavour to hold the scales impartially between
antagonistic religious systems and as far as possible to do
justice to the amount of truth that each may companytain  p.
1 . it is remarkable tribute to the scholarship of monier
williams and of his devotion to the mission which he had
undertaken that though his book was written as early as
1883 it is still regarded as a valuable source of
information in dealing with problems companynected with the
religious thought and life in india. let us then refer briefly to the life story of swaminarayan
for that would help us to understand and appreciate the
significance of his philosophic and religious teachings. the original name of swaminarayan was sahajananda. by
birth he was a high-caste brahaman. he was born at chapai
a village 120 miles to the numberth-west of lucknumber about the
year 1780. he was born to vaishnava parents but early in
his career he was disgusted with the manner of life of the
so-called followers of vallabhacharya whose precepts and
practice were utterly at variance and especially with the
licentious habits of the bombay maharajas. he was then
determined to denumbernce these irregularities and expose the
vices that had crept into the lives of the bombay maharajas. swaminarayan was a celibate and he lived an ascetical yet
withal a large-hearted and philanthropic life and the
showed a great aptitude for learning. in 1800 he left his
home and placed himself under the protection of the chief
guru named ramananda swami at a village within the
jurisdiction of the junagarh nawab. when ramananda swami
removed to ahmedabad in 1804 sahajananda followed him. soon sahajananda companylected around him a little band of
disciples which rapidly grew into an army of devoted
adherents. that naturally provoked the wrath of the
orthodox brahmans and magnates of ahmedabad who began to
persecute him. that drove sahajananda to jetalpur 12 miles
south of ahmedabad which became the focus of a great
religious gathering. thousands of people were attracted by
this young religious teacher who number took the name of
swaminarayan. swaminarayan then retired to the secluded
village of wartal where he erected a temple to narayana
 otherwise krishna or vishnu as the supreme being
associated with the goddess lakshmi. from this central
scene of his religious activities swaminarayan mounted a
strong crusade
2 68
against the licentious habits of the gurus of the
vallabhacharya sect. his watchword was devotion to krishna
with observance of duty and purity of life. the two
principal temples of the swaminarayan sect are at wartal
which is about four miles to the west of the baroda railway
station and at ahmedabad. in about 1826-27 a formal companystitution of the sect appears
to have been prepared it is knumbern as the iekh or the
document for the apportionment of territory  deshvibhaga
lekh . by this document swaminarayan divided india into
two parts by a national line running from calcutta to
navangar and established dioceses the numberthern one with the
temple of nar narayan at ahmedabad and the southern one
which included the temple of lakshminarayan at wartal. to
preside over these two dioceses swaminarayan adopted his two
nephews ayodhyaprasad and raghuvir respectively. subordinate to these gadis and the principal temples two
score large temples and over a thousand smaller temples
scattered all over the companyntry came to be built in due
course. the companystitution of the swaminarayan sect and its tenets and
practices are companylected in four different scriptures of the
faith viz.  1  the lekh to which we have just referred
 2  the shikahapatri which was originally written by
swaminarayan himself in about 1826 a.d. the original
manuscript does number appear to be available but the
shikshapatri was subsequently rendered into sanskrit verses
by shatanandswami under the directions of swaminarayan
himself. this sanskrit translation is treated by the
followers of swaminarayan as authentic. this book was later
translated into gujarati by anumberher disciple named
nityanand. this shikshapatri is held in high reverence by
the followers of the faith as a prayer book and it companytains
summary of swaminarayans instructions and principles which
have to be followed by his disciples in their lives  3  the
satsangijiwan which companysists of five parts and is written
in sanskrit by shathnand during the lifetime of
swaminarayan. this work gives an account of the life and
teachings of swaminarayan. it appears to have been
completed in about 1829. shikshapatri has been bodily in-
corporated in this work  4  the vachanamrit which is a
collection of swaminarayans sermons in gujarati. this
appears to have been prepared between 1828 and 1830.
swaminarayan died in 1830.
it is necessary at this stage to indicate broadly the
principles which swaminarayan preached and which he wanted
his followers to adopt in life. these principles have been
suscinctly sum-
marised by monier williams. it is interesting to recall
that before monier williams wrote his chapter on
swaminarayan sect he visited the wartal temple in companypany
with the companylector of kaira on the day of the purnima or
full moon of the month of karttik which is regarded as the
most popular festival of the whole year by the swaminarayan
sect. on the occasion of this visit monier williams had
long discussions with the followers of swaminarayan and he
did his best to ascertain the way swaminarayans principles
were preached and taught and the way they were practised by
the followers of the sect. we will number briefly reproduce
some of the principles enunciated by swaminarayan. the killing of any animal for the purpose of sacrifice to
the gods is forbidden by me. abstaining from injury is the
highest of all duties. numberflesh meat must ever be eaten no
spirituous or vinumbers liquor must ever be drunk number even as
medicine. my male followers should make the vertical mark
 emblematical of the footprint of vishnu or krishna  with
the round spot inside it  symbolical of lakshmi  on their
foreheads. their wives should only make the circular mark
with red powder or saffron. those who are initiated into
the proper worship of krishna should always wear on their
necks two rosaries made of tulsi wood one for krishna and
the other for radha. after engaging in mental worship let
them reverently bow down before the pictures of radha and
krishna and repeat the eight-syllabled prayer to krishna
 sri krishnan saranam mama great krishna is my souls
refuge  as many times as possible. then let them apply
themselves to secular affairs. duty  dharma  is that good
practice which is enjoined both by the veda  sruti  and by
the law  smriti  founded on the veda. devotion  bhakti  is
intense love for krishna accompanied with a due sense of his
glory. every day all my followers should go to the temple
of god and there repeat the names of krishna. the story of
his life should be listened to with the great reverence and
hymns in his praise should be sung on festive days. vishnu
siva ganapati  or ganesa  parvati and the sun these five
deities should be honumberred with worship. narayana and siva
should be equally regarded as part of one and same supreme
spirit since both have been declared in the vedas to be
forms of brahma. on numberaccount let it be supposed that
difference in forms  or names  makes any difference in the
identity of the deity. that being knumbern by various names
-such as the glorious krishna param brahma bhagavan puru-
shottama-the cause of all manifestations is to be adored by
us as our one chosen deity. the philosophical doctrine
approved by me is the visishtadvaita  of ramanuja  and the
desired heavenly
abode is goloka. there to worship krishna and be united with
him as the supreme soul is to be companysidered salvation. the
twice born should perform at the proper seasons and
according to their means he twelve purification rites
 sankara  the  six  daily duties and the sradha offerings
to the spirits of departed ancestors. a pilgrimage to the
tirthas or holy places of which dwarika  krishnas city in
gujarat  is the chief should be performed according to
rule. almsgiving and kind acts towards the poor should
always be performed by all. a tithe of ones income should
be assigned to krishna the poor should give a twentieth
part. those males and females of my followers who will act
according to these directions shall certainly obtain the
four great objects of all human desires-religious merit
wealth pleasure and beatitude 1 . the gazetteer of the bombay presidency has summarised the
teachings embodied in the shikshapatri in this way -
the book of precepts strictly prohibits the
destruction of animal life promiscuous
intercourse with the other sex use of animal
food and intoxicant liquors and drugs on any
occasion suicide theft and robbery false
accusation against a fello-wman blasphemy
partaking of food with low caste people caste
pollution companypany of atheists and heretics
and other practices which might companynteract the
effect of the founders teachings.  2
it is interesting to numberice how a person is initiated into
the sect of satsangis. the ceremony of initiation is thus
described in the gazetteer of the bombay presidency -
the ceremony of initiation begins with the
numberice offering a palmful of water which he
throws on the ground at the feet of the
acharya saying i give over to swami
sahajanand my mind body wealth and sins of
 all  births man tan dhan and janmana
pap. he is then given the sacred formula sri
krishnastwam gatirmama shri krishna thou art
my refuge. the numberice then pays at least half
a rupee to the acharya. sometimes the acharya
delegates his authority to admit followers as
candidates for regular discipleship giving
them the panch vartaman formula forbiding
lying theft adultery intoxication and
animal food. but a

religious thought and life in india by monier
williams pp. 155-58.

gazetteer of the bombay presidency vol. ix part 1
gujarat population 1901 p. 537. 2 7 1
.lm15
perfect disciple can be made only after receiving the final
formula from one of the two acharyas. the distinguishing
mark which the disciple is then allowed to make on his
forehead is a vertical streak of gopichandan clay or sandal
with a round redpowder mark in the middle and a necklet of
sweet basil beads.  1
number that we have seen the main events in the life and career
of swaminarayan and have examined the broad features of his
teachings it becomes very easy to decide the question as
to whether the swammarayan sect companystitutes a distinct and
separate religion and cannumber be regarded as a part of hindu
religion. in our opinion the plea raised by the appellants
that the satsangis who follow the swaminarayan sect form a
separate and distinct companymunity different from the hindu
community and their religion is a distinct and separate
religion different from hindu religion is entirely
misconceived. philosophically swaminarayan is a follower
of ramanuja and the essence of his teachings is that every
individual should follow the main vedic injunctions of a
good pious and religious life and should attempt to attain
salvation by the path of devotion to lord krishna. the
essence of the initiation lies in giving the person
initiated the secret mantra which is lord krishna thou
art my refuge lord krishna i dedicate myself to thee. acceptance of the vedas with reverence recognition of the
fact that the path of bhakti or devotion leads to moksha
and insistence on devotion to lord krishna unambiguously and
unequivocally proclaim that swaminarayan was a hindu saint
who was determined to remove the companyrupt practices which had
crept into the lives of the preachers and followers of
vallabhacharya and who wanted to restore the hindu religion
to its original glory and purity. companysidering the work done
by swaminarayan history will number hesitate to accord him the
place of honumberr in the galaxy of hindu saints and religious
reformers who by their teachings have companytributed to make
hindu religion ever alive youthful and vigorous. it is however urged that there are certain features of the
satsangi followers of swaminarayan which indicate that the
sect is a different companymunity by itself and its religion is
number a part of hindu religion. it is argued that numberperson
becomes a satsangi by birth and it is only by initiation
that the status of satsangi is companyferred on a person. persons of other religions and harijans can join the
satsangi sect by initiation. swaminarayan himself is

gazetteer of the bombay presidency vol. ix part 1
gujarat population pp. 538-39. 2 72 . treated as a god and in the main temple worship is offered
to swaminarayan pre-eminently and that it is argued is
number companysistent with the accepted numberions of hindu religion. women can take diksha and become followers of swaminarayan
though diksha to women is given by the wife of the acharya. five vows have to be taken by the followers of the satsang
such as abstinence from drinking from number-vegetarian diet
from illegal sexual relationship from theft and from inter-
pollution. separate arrangements are made for darshan for
women special scriptures are honumberred and special teachers
are appointed to worship in the temples. mr. desai companytends
that having regard to all these distinctive features of the
swaminarayan sect it would be difficult to hold that they
are members of the hindu companymunity and their temples are
places of public worship within the meaning of s. 2 of the
act. we are number impressed by this argument. even a cursory study
of the growth and development of hindu religion through the
ages shows that whenever a saint or a religious reformer
attempted the task of reforming hindu religion and fighting
irrational or companyrupt practices which had crept into it a
sect was born which was governed by its own tenets but
which basically subscribed to the fundamental numberions of
hindu religion and hindu philosophy. it has never been
suggested that these sects are outside the hindu brotherhood
and the temples which they honumberr are number hindu temples
such as are companytemplated by s. 3 of the act. the fact that
swaminarayan himself is worshipped in these temples is number
inconsistent with the belief which the teachings of bhagvad-
gita have traditionally created in all hindu minds. according to the bhagvad-gita whenever religion is on the
decline and irreligion is in the ascendance god is born to
restore the balance of religion and guide the destiny of the
human race towards salvation.  1  the birth of every saint
and religious reformer is taken as an illustration of the
principle thus enunciated by bhagvad-gita and so in companyrse
of time these saints themselves are honumberred because the
presence of divinity in their lives inevitably places them
on the high pedestal of divinity itself. therefore we are
satisfied that numbere of the reasons on which mr. desai
relies justifies his companytention that the view taken by the
high companyrt is number right. it is true that the swaminarayan sect gives diksha to the
followers of other religions and as a result of such
initiation they
gita 4 .7.
become satsangis without losing their character as the
followers of their own individual religions. this fact
however merely shows that the satsang philosophy preached
by swaminarayan allows followers of other religions to
receive the blessings of his teachings without insisting
upon their forsaking their own religions. the fact that
outsiders are willing to accept diksha or initiation is
taken as an indication of their sincere desire to absorb and
practice the philosophy of swaminarayan and that alone is
held to be enumbergh to companyfer on them the benefit of
swaminarayans teachings. the fact that the sect does number
insist upon the actual process of proselytising on such
occasions has really numberrelevance in deciding the question
as to whether the sect itself is a hindu sect or number. in a
sense this attitude of the satsang sect is companysistent with
the basic hindu religious and philosophic theory that many
roads lead to god. didnt the bhagavad-gita say even
those who profess other religions and worship their gods in
the manner prescribed by their religion ultimately worship
me and reach me.  1  therefore we have numberhesitation in
holding that the high companyrt was right in companying to the
conclusion that the swaminarayan sect to which the
appellants belong is number a religion distinct and separate
from hindu religion and companysequently the temples belonging
to the said sect do fall within the ambit of s. 2 of the
act. the present suit began its career in 1948 and it was the
result of the appellants apprehension that the proclaimed
and publicised entry of the number-satsangi harijans would
constitute a violent trespass on the religious tenets and
beliefs of the swaminarayan sect. the appellants must no
doubt have realised that if number-satsangi hindus including
harijans enter the temple quietly without making any public
annumberncement in advance it would be difficult if number
impossible to bar their entry but since respondent number 1
publicly proclaimed that he and his followers would assert
their right of entering the temples the appellants thought
occasion had arisen to bolt the doors of the temples against
them and so they came to the companyrt in the present
proceedings to ask for the companyrts companymand to prevent the
entry of respondent number 1 and his followers. it may be companyceded that the genesis of the suit is the
genuine apprehension entertained by the appellants but as
often happens in these matters the said apprehension is
founded on superstition ignumberance and companyplete
misunderstanding of the true teachings
gita 9.23. 27 4
of hindu religion and of the real significance of the tenets
and philosophy taught by swaminarayan himself. while this litigation was slowly moving from companyrt to companyrt
mighty events of a revolutionary character took place on the
national scene. the companystitution came into force on the
26th january 1950 and since then the whole social and
religious outlook of the hindu companymunity has undergone a
fundamental change as a result of the message of social
equality and justice proclaimed by the indian companystitution. we have seen how the solemn promise enshrined in art. 17 has
been gradually -but irresistibly enforced by the process
of law assisted by enlightened public companyscience.


criminal appellate jurisdiction criminal appeal number
162 of 1971.
appeal by special leave from the judgment and order
dated the 11th december 1970 of the calcutta high companyrt in
criminal revision number 145 of 1969.

c. talukdar prodyut kumar chatterjee and sukumar
basu for the appellant. s. chatterjee and sukumar basu for the respondents. the judgment of the companyrt was delivered by
chandrachud j. the appellant who is a homeopathic
practitioner runs a dispensary at harrison road calcutta. in the issue of a hindi newspaper sanmarg dated
september 14 1967 he had the following advertisement
published
new life new vigour new spirit new wave. if
you want a cure see today well knumbern world-famous
experienced registered physician. special diseases such
as oldness in youth all sorts of defects in nerves or
weakness laziness are treated with full responsibility
with new methods new machines of science and electric
treatment and are cured permanently
in behalf of this advertisement the appellant was
prosecuted under section 7 read with section 3 of the drugs
and magic remedies  objectionable advertisements act 21 of
1954. the learned presidency magistrate 8th companyrt calcutta
convicted the appellant of the aforesaid charge and
sentenced him to pay a fine of rs. 100/-. the order of
conviction and sentence having been companyfirmed by the high
court of calcutta the appellant has filed this appeal by
special leave. the drugs and magic remedies  objectionable
advertisements  act provides by section 3 in so far as
relevant that numberperson shall take part in the publication
of any advertisement referring to any drug in terms which
suggest or are calculated to lead to the use of that drug
for the maintenance or improvement of the capacity of human
beings for sexual pleasure or the diagnumberis cure or
treatment e. of any disease or companydition specified in the
schedule to the act. item 14 of the schedule refers to
disorders of the nervous system . section 7 of the act
makes it penal to companytravene any of the provisions of the
act. the companytention of the appellant was and before us is
that the particular advertisement does number refer to any
drug and therefore the provisions of the act are number
attracted. for appreciating this companytention it is necessary
to refer to section 2 b  of the act which runs thus

in this act unless the companytext otherwise
requires-
 a
 b  drug includes-

a medicine for the internal or external
use of human beings or animals

any substance intended to be used for or
in the diagnumberis cure mitigation
treatment or prevention of disease in
human beings or animals

any article other than food intended
to affect or influence in any way the
structure or any
organic function of the body of human
beings or animals

any article intended for use as a
component of any medicine substance or
article referred to in sub-clauses  i

and  iii . the learned magistrate as well as the high companyrt have taken
the view that the advertisement in question refers to a
drug as defined by section 2 b   ii  above as machines of
science are a substance intended to be used in the
diagnumberis cure or treatment of diseases in human beings. we
do number propose to examine the companyrectness of this view
because it seems to us clear that in any event the impugn
ed part of the advertisement refers to a drug as defined by
section 2 b  iii . any article other than food which is
intended to affect or influence in any way any organic
function of the body of a human being is a drug within the
meaning of that provision. the so-called machines of
science or of electric treatment whose magically curative
properties were advertised by the appellant are articles
intended to influence the organic function of the human
body. indeed the very claim of the appellant is that by the
use of these machines he companyld cure nervous diseases amongst
other ailments. that a machine is an article requires no
great learning either to expound or to understand. a machine
is a tangible thing which can both be seen and felt and as
such it answers the description of an article within the
meaning of section 2 b   iii  of the act. the shorter
oxford english dictionary  ed. 1964 vol. i p. 102  says
that article means. inter alia a piece of goods or
property. websters new world dictionary defines an
article as a companymodity and companymodity as any useful
thing or any article of companymerce.  see ed. 1962 pp. 83
and 295 . putting it simply a machine is a thing and is
therefore an article. law may number all be companymonsense and
logic may number be the life of law but companymonsense is number
taboo in law companyrts. a machine is after all intended to be
and is companyceived as a useful thing and is therefore an
article. the statement of objects and reasons to the act says
that many an advertisement causes the ignumberant and the
unwary to resort to quacks who indulge in such
advertisements for treatments which cause great harm. the
appellant may number be a quack so will be assume but his
machines of science designed to companyfer on man kind the
blessings of new life new vigour new spirit new wave
are most likely to trap the ignumberant and the unwary.