While describing Sanathana Dharma as a collection of ‘eternal duties’, the Madras High Court has in a most learned, laudable, landmark and latest judgment titled Elangovan vs The Secretary, Home Department & Ors. in W.P.No.27398 of 2023 that was pronounced as recently as on September 15, 2023 has disposed of a writ petition challenging a circular that had been issued by the Thiru.Vi.Ka. Government Arts College in Thiruvarur that was prompted by a sitting MLA requesting the female students to express their own opinions on the key subject of ‘Opposition to Sanathana’.

The Madras High Court underscored that when exercising freedom of speech in matters related to religion, it is imperative to ensure that no one is harmed. It must be mentioned here that the Single Judge Bench of Hon’ble Mr Justice N Seshasayee in its order emphatically stated that, “Court is conscious to the very vociferous, and at time noisy debates on pro and anti Sanathana Dharma. It has also broadly understood Sanathana Dharma as a set of ‘eternal duties’, and that it cannot be traced to one specific literature, but has to be gathered from multiple sources which, either relate to Hinduism, or which those who practice the Hindu way of life, have come to accept.” Very rightly so!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice N Seshasayee of Madras High Court sets the ball rolling by first and foremost putting forth the prayer of the petitioner that:
The writ petition filed under Article 226 of the Constitution of India, to issue a writ of Declaration, to declare the circular dated 12.09.2023 issued by the third respondent at the instance of the fourth respondent as unconstitutional and affront to secularism being basic structure of constitution and consequently, forebear the respondents from conducting, organizing and program on 15.09.2023 or any other subsequent dates on the topic of antisanathanam.”

To put things in perspective, the Bench envisages in para 1 that:
This petition herein challenges a circular, dated 12.09.2023, issued by the 3rd respondent, the Principal of the Thiru.Vi.Ka. Government Arts College, apparently pursuant to a communication addressed by the 4th respondent, a sitting MLA of the ruling party in this State. In the impugned circular, the 3rd respondent had required the girl-students studying in the college to share their views on the topic ‘Opposition to Sanathana’ on the occasion of commemoration of the birthday of the former Chief Minister and founder of the D.M.K party, late C.N. Annadurai, which falls on 15.09.2023.”

On the one hand, the Bench states in para 2 that:
Appearing for the petitioner Mr.G.Karthikeyan, the learned Senior Counsel, submitted, that the conduct of the 4th respondent in addressing a communication to the 3rd third respondent on the subject indicated, is in gross breach of his Constitutional duties as a citizen of this country under Article 51A of the Constitution, more particularly, Articles 51A (c), (e) and (f) of the Constitution, as it aims to affect the unity of the country, social harmony and spirit of brotherhood amongst the people of India, and the duty to value and preserve the rich heritage of our composite culture.”

On the other hand, the Bench then mentions in para 3 that:
Mr.C.Kathiravan, the learned Special Government Pleader takes notice for respondents 1 to 4, and he made a statement, on the written instruction of the 3rd respondent, that the circular impugned in this case has been withdrawn.”

Be it noted, the Bench notes succinctly in para 4 that:
This Court is conscious to the very vociferous, and at time noisy debates on pro and anti Sanathana Dharma. It has also broadly understood Sanathana Dharama as a set of ‘eternal duties’, and that it cannot be traced to one specific literature, but has to be gathered from multiple sources which, either relate to Hinduism, or which those who practice the Hindu way of life, have come to accept.

It includes the duty to the nation, duty to the King, King's duty to his people, duty to one’s parents and Gurus, care for the poor, and whole lot of other duties. If the topic chosen by the impugned circular is now tested on the plane of these duties, it would then mean that all these duties are liable to be destroyed. Should not a citizen love his country? Is he not under a duty to serve his nation? Should not the parents be cared? With genuine concern for what is going round, this Court could not help pondering over it.”

Do note, the Bench notes in para 5 that:
Somewhere, an idea appears to have gained ground that Sanadhana Dharma is all about, and only about, promoting casteism and untouchability. Untouchability in a country of equal citizens, cannot be tolerated, and even if it is seen as permitted somewhere within the principles of ‘Sanathana dharma’, it still cannot have a space to stay, since Article 17 of the Constitution has declared that untouchability has been abolished. It is part of the fundamental right. And, under Art. 51A(a), it is the fundamental duty of every citizen to, “abide by the Constitution and respect its ideals and institutions..”

Therefore, untouchability, either within or outside Sanatana Dharma can no longer be Constitutional, though sadly it still exits. Here, Mr. G. Karthikeyan, submitted with considerable force that nowhere Sanatana Dharma either approves or promotes untouchability, and it only insists the practitioners of Hinduism to treat all equally. ‘As religious practices move with time, some bad or evil practices may un-noticingly creep into it. They are the weeds required to be removed. But why should the crop be chopped?’ - This, in short the essence of the submissions of the learned counsel.”

Most forthrightly and so also most commendably, the Bench propounds in para 6 that:
This Court is conscious that every citizen has a fundamental right to free speech under Article 19(1)(a) of the Constitution. While right to free speech is inalienable, it is also important to underscore that one is adequately informed, as it adds value to what is spoken. It should not be forgotten that the Constitutional framers have very consciously has not made right to free speech as an absolute right. They have restricted it with Article 19(2). This apart, Article 25 has granted all citizens the fundamental right inter alia to practice any religion. Every religion is founded on faith, and faith by nature accommodates irrationality.

Therefore, when free speech is exercised in matters pertaining to religion, it is necessary for one to ensure that no one is injured. In other words free speech cannot be hate speech, as the Hon’ble Supreme Court has cautioned. The users of free speech must not ignore to factor these aspects while exercising their right. If this is ignored, the course of any debate will get derailed, and the objective behind it will lose significance.”

Most significantly and so also most remarkably, the Bench mandates in para 7 holding that:
How free speech is seen exercised these days? If the free speech made through the social media is taken as a basis, anyone who has little to do with science, or rocket, or space, will be lecturing on rocket science. While this is also accommodated within the right to free speech, yet it may be helpful to gain some attention, and may not take it beyond.

It would be appreciable, if free speech encourages dispassionate, and healthy public debates, and help the society to move forward, along the lines which the Constitution envisages. At the end of the day, every citizen traces his existence to the Constitution, and hence it is his duty to abide by its values, its ethos, and to hold an uncompromising abidance to its spirits. This should not be forgotten. Hope it prevails.”

Finally, the Bench concludes by holding that:
Turing to the petition, since the circular in question is withdrawn, nothing survives in it. This Court still encourages the College concerned to require the students on reflect on the evils of untouchability, and how they, as citizens of this country, can contribute to its elimination. This petition is accordingly stands disposed. No Costs.”

In conclusion, we thus see that the Madras High Court has made it indubitably clear that while every citizen has the right to free speech under Article 19(1)(a) of the Constitution, it should not be ever forgotten that the Constitutional framers have very consciously not made right to free speech as an absolute right.

They have restricted it with Article 19(2). To say the least, the Court also was forthright in holding that when free speech is exercised in matters pertaining to religion, it is necessary for one to ensure that no one is injured. To put it differently, the Madras High Court also made it clear that free speech cannot be hate speech and we must note here that even the Hon’ble Supreme Court has cautioned on it as pointed out in this notable judgment.

My very best friend Sageer Khan way back in 1993 to 1995 as long as I was in touch with him in Mackronia locality in Sagar in Madhya Pradesh always hailed Hindus as most tolerant in the world who never fight even for their basic legal rights and said that all religions in the world must learn tolerance and compassion from Hindus and he said that those who criticize Hindus very conveniently forget that Hindu religion is the oldest religion in the world and it is Hindus who so readily without even a whimper of protest so readily accepted abolition of polygamy and polyandry in 1955 even though it has been prevalent since ages but no PM can ever dare abolish polygamy among Muslims and film actor Dharmendra had to convert to Islam to get married twice which is more than enough to prove how tolerant Hindus are and also asked that if Lord Ram temple is not built in Ayodhya then will it be built in Mecca or Medina?

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.