Articles 25 and 26 vest the right to exhibit a person’s belief in his conduct by such outward acts as may appear to him proper in order to spread his ideas for the benefit of others

Ravikiran Shukre | Manikchand Pahade Law College, Aurangabad | 3rd March 2020 

The Durgah Committee, Ajmer and Anr. V. Syed Hussain Ali and Anr. [1962 SCR (1) 383]

Facts of the case: 

1. Khwaja Saheb came to India sometime towards the end of the 12th Century A. D. and settled down in Ajmer. His saintly character and his teachings attracted a large number of devotees during his lifetime and these devotees honoured him as a great spiritual leader. Khwaja Saheb belonged to the Chishti Order of Soofies. He died at Ajmer in or about 1236 A. D., and naturally enough after his death-his tomb became a place of pilgrimage.
2. The respondents’ case further is that after his death the tomb under which the saint was interred was a kutcha structure and continued to be such for nearly 300 years thereafter. The petition alleged that a pucca structure was built by the Khilji Sultans of Mandu and over the said pucca structure a tomb was constructed. Thereafter successive Muslim Rulers, particularly the Moghul Emperors, made endowments and added to the wealth and splendour of the shrine.
3. Khwaja Syed Fukhuruddin and Sheikh Mohammad Yadgar, who originally accompanied the Khwaja Saheb Syed to India, were his close and devoted followers. After the saint’s death both of them looked after the, grave and attended to the spiritual needs of the pilgrims. The descendants of these two disciples gradually came to be known as Khadims. For generations past their occupation has been that of religious service at the tomb of Khwaja Saheb. The- respondents belong to this sect or section of Khadims. They claim that they are members of a religious denomination or section known as Chishtia Soofies. Their petition further avers that throughout the centuries the Khadims had not only looked after the premises of the tomb but also kept the keys of the tomb and attended to the multitude of pilgrime who visited the shrine and acted as spiritual guides in the performance of religious functions to, with the Fateha (act of prayer) for which they received Nazars (offerings). These Nazars were the main source of income for the livelihood of the Khadims and have in fact always constituted their property.
4. Thus the respondents challenged the vires of the Act on the ground that its material provisions take away and/or abridge their fundamental rights as a class and also the fundamental rights of the muslims belonging to the Soofi Chishtia Order guaranteed by Arts. 14, 19 (1) (f) and (g), 25, 26, 31(1) and (2) as well as 32.

Judgment: 

1. The appellants pleaded that according to Islamic belief offerings made at the tomb of a dead saint are meant for the fulfilment of objects which were dear to the saint in his lifetime and they are meant for the poor, the indigent. the sick and the stiffering so that the benediction may reach the soul of the., departed saint. The averments made by the respondents in regard to their fundamental rights and their infringement were challenged by the appellants and it was urged that the Act in general and the provisions specified in the petition in particular were intra vires and constitutional.
2. The respondents pleaded that material provisions take away and/or abridge their fundamental rights as a class and also the fundamental rights of the muslims belonging to the Soofi Chishtia Order guaranteed by Arts. 14, 19 (1) (f) and (g), 25, 26, 31(1) and (2) as well as 32.
3. Freedom given under Articles 25 and 26; guarantees to every citizen not only the right to entertain such religious beliefs as may appeal to his conscience but also affords him the right to exhibit his belief in his conduct by such outward acts as may appear to him proper in order to spread his ideas for the benefit of others. 
4. If the right to administer the properties never vested in the denomination or had been validly surrendered by it or has otherwise been effectively and irretrievably lost to it Art. 26 cannot be successfully invoked.

The Supreme Court thus held that, the challenge to the vires of S. 5 and the subsidiary sections which deal with the powers of the Committee on the ground that the said provisions violate the fundamental right guaranteed to the denomination represented by the respondents under Art. 26(c) and (d) fails. And held that; the order passed by High Court is set aside and the petition filed by the respondents is dismissed with costs.