ASHWINI KUMAR UPADHYAYversusUNION OF INDIA & ORS.

184                       [2023]
               SUPREME COURT     3 S.C.R. 184
                              REPORTS                          [2023] 3 S.C.R.


A                      ASHWINI KUMAR UPADHYAY
                                        v.
                          UNION OF INDIA & ORS.
                      (Writ Petition (Civil) No.190 of 2023)
B                             FEBRUARY 27, 2023
             [K. M. JOSEPH AND B. V. NAGARATHNA, JJ.]
             Constitution of India – Article 32, 14 – Petition filed seeking
      directions – to the Home Ministry to constitute a Renaming
      Commission to find out original names of ancient historical cultural
C
      religious places, named after barbaric foreign invaders; to the ASI
      to research and publish their initial names; to the Centre and State
      Governments to update their websites and records – Held:
      Secularism has been accepted as a facet of the basic structure of
      the Constitution – Bharat is a secular nation committed to securing
D     fundamental rights to all sections as contemplated in the Constitution
      – Governance of Bharat must conform to Rule of law, secularism,
      constitutionalism of which Article 14 stands out as the guarantee of
      both equality and fairness in the State’s action – Reliefs sought not
      granted by this Court acting as the guardian of fundamental rights
      of all u/Article 32.
E
            Dismissing the writ petition, the Court
            HELD: 1.1 Secularism has been accepted as a facet of the
      basic structure of the Constitution. The present and future of a
      country cannot remain a prisoner of the past. The governance of
F     Bharat must conform to Rule of law, secularism, constitutionalism
      of which Article 14 stands out as the guarantee of both equality
      and fairness in the State’s action. The founding fathers
      contemplated India to be a republic which is not merely to be
      conflated to a body polity having an elected President which is
      the conventional understanding. But it also involves ensuring
G     rights to all sections of people based on it being a democracy. It
      is important that the country must move forward. For achieving
      the sublime goals which are enshrined in Part IV – that is the
      Directive Principles, but bearing in mind the fundamental rights
      also guaranteed in Part III of the Constitution, which have been
H     described as the two wheels of the chariot of the State, both of
                                       184
 ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ORS.                     185


which are indispensable, for the smooth progress of the nation,      A
actions must be taken which bond all sections of the society
together. [Paras 5, 9 and 10][188-B; 193-A-C]
      1.2 The history of any nation cannot haunt the future
generations of a nation to the point that succeeding generations
become prisoners of the past. The golden principle of fraternity     B
which again is enshrined in the preamble is of the greatest
importance and rightfully finds its place in the preamble as a
constant reminder to all stakeholders that maintenance of
harmony between different sections alone will lead to the imbibing
of a true notion of nationhood bonding sections together for the
greater good of the nation and finally, establish a sovereign        C
democratic republic. Courts of law, as indeed every part of the
‘State’, must be guided by the sublime realisation, that Bharat is
a secular nation committed to securing fundamental rights to all
sections as contemplated in the Constitution. The reliefs which
have been sought for should not be granted by this Court acting      D
as the guardian of fundamental rights of all under Article 32 of
the Constitution of India and bearing in mind the values which a
Court must keep uppermost in its mind - the preamble gives
clear light in this direction. [Paras 11, 12][193-D-F]
     His Holiness Kesavananda Bharati Sripadagalvaru v.              E
     State of Kerala and Another (1973) 4 SCC 225 : [1973]
     0 Suppl. SCR 1; S.R. Bommai and Others v. Union of
     India and Others (1994) 3 SCC 1 : [1994] 2 SCR 644
     – followed.
     State of Karnataka v. Praveen Bhai Thogadia (Dr.)               F
     (2004) 4 SCC 684 : [2004] 3 SCR 652; M.P.
     Gopalakrishnan Nair v. State of Kerala (2005) 11 SCC
     45 : [2005] 3 SCR 712 – relied on.
                      Case Law Reference
[1973] Suppl. SCR 1           followed               Para 5          G
[1994] 2 SCR 644              followed               Para 5
[2004] 3 SCR 652              relied on              Para 6
[2005] 3 SCR 712              relied on              Para 7
                                                                     H
186           SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A           CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.190
      of 2023.
           (Under Article 32 of The Constitution of India)
           Ashwani Kumar Dubey, Advs. for the Petitioner.
B          Ashwini Kumar Upadhyay, Petitioner-in-person
           The Judgment of the Court was delivered by
           K. M. JOSEPH, J.
           1. The reliefs sought for by the petitioner are as follows:
C          “a) direct the Home Ministry to constitute a “Renaming
           Commission” to find out original names of ‘ancient historical
           cultural religious places’, named after barbaric foreign invaders
           in order to maintain Sovereignty and to secure ‘Right to Dignity,
           Right to Religion and Right to Culture’ guaranteed under Articles
           21, 25 and 29 of the Constitution;
D
           b) alternatively, direct the Archaeological Survey of India to
           research and publish the initial names of ancient historical cultural
           religious places, which were renamed by barbaric foreign invaders,
           in order to secure ‘Right to Know’ guaranteed under Article 19 of
           the Constitution;
E
           c) direct the Centre and State Governments to update their
           websites and records and mention the original names of ancient
           historical cultural religious places, named after the barbaric foreign
           invaders.”

F           2. We have heard Shri Ashwini Kumar Upadhyay, petitioner
      appearing in-person.
           3. In brief, the case of the petitioner appears to be as follows:
           The country is celebrating the 75th Anniversary of Independence
           but there are many ancient, historical, cultural, religious places in
G          the name of ‘brutal foreign invaders’, their servants and family
           members. He has given various examples. He invokes the right
           to dignity as flowing from Article 21 of the Constitution of India.
           He further submits that there is his fundamental right to culture
           which is protected inArticles 19 and 29. Again, he refers to Article
           25 as the source of his right to religion and in regard to his
H
 ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ORS.                                187
                [K. M. JOSEPH, J.]

      fundamental right to know, he leans on Article 19(1)(a). He also          A
      has brought up the concept of ‘sovereignty’ being compromised
      by the continuous use of the names of the ‘brutal invaders’.
      4. The petitioner, in fact, draws our attention to the following
questions of law:
      “1. Whether continuing the names of ancient historical cultural           B
      religious places, in the names of barbaric invaders is against the
      Sovereignty?
      2. Whether Centre and States are obligated to restore the names
      of ancient historical cultural religious places in their original names
      to secure Right to Dignity guaranteed under Article 21 of the             C
      Constitution?
      3. Whether the relief claimed for restoration of names of ancient
      historical cultural religious places, which were changed during
      foreign rule, relates to Unity and Integrity of the Nation, the
      laudable objective sought to be achieved in the Preamble of the           D
      Constitution of India?
      4. Whether Right to profess, practice and propagate religion, is
      intimately connected with the names of religious places and
      therefore the changes made during foreign rule must be restored
      to enable the citizens to freely Profess, Practice and Propagate          E
      Religion guaranteed Article 25?
      5. Whether the names of places prevalent during Ramayana and
      Mahabharata Period were arbitrarily and illegally changed during
      foreign rule, ought to be restored so as to protect the Right to
      Conserve the Ancient Culture, guaranteed under Article 29 of the          F
      Constitution of India?
      6. Whether restoration of the names of the ancient historical
      cultural religious places, is connected with Right to Identity
      guaranteed under Article 21?
      7. Whether Right to Know guaranteed under Article 19 includes             G
      the right to know Original Names of the ancient historical cultural
      religious places?”
      5. We may notice that we have to bear in mind being the Court
dealing with the matter under Article 32 of the Constitution, that the
                                                                                H
188               SUPREME COURT REPORTS                             [2023] 3 S.C.R.


A     Court is tasked with the enforcement of fundamental rights. India, that
      is ‘Bharat’ in terms of the preamble, is a secular country. In His Holiness
      Kesavananda Bharati Sripadagalvaru v. State of Kerala and
      Another1, we notice that it was opined “India is a secular State in which
      there is no State religion” (See para 487). The secular and federal
      character of the Constitution has found to be among the “basic elements
B
      of the constitutional structure” (See para 582). Secularism has been
      accepted by a Bench of nine learned Judges in the decision reported in
      S.R. Bommai and Others v. Union of India and Others2, as a facet of
      the basic structure of the Constitution. Therein, this Court, inter alia,
      declared:
C              “144....In such circumstances, the Ministries formed by the said
               party could not be trusted to follow the objective of secularism
               which was part of the basic structure of the Constitution and also
               the soul of the Constitution.
               145. These contentions inevitably invite us to discuss the concept
D              of secularism as accepted by our Constitution. Our Constitution
               does not prohibit the practice of any religion either privately or
               publicly. Through the Preamble of the Constitution, the people of
               this country have solemnly resolved to constitute this country,
               among others, into a secular republic and to secure to all its citizens
E              (i) JUSTICE, social, economic and political; (ii) LIBERTY of
               thought, expression, belief, faith and worship; (iii) EQUALITY
               of status and of opportunity; and (iv) to promote among them all
               FRATERNITY assuring the dignity of the individual and the unity
               and integrity of the Nation. Article 25 of the Constitution guarantees
               to all persons equally the freedom of conscience and the right to
F              freely profess, practise and propagate religion subject to public
               order, morality and health and subject to the other Fundamental
               Rights and the State’s power to make any law regulating or
               restricting any economic, financial, political or other secular activity
               which may be associated with religious practice. Article 26
G              guarantees every religious denomination or any section thereof
               the right (a) to establish and maintain institutions for religious and
               charitable purposes, (b) to manage its own affairs in matters of
               religion, (c) to own and acquire movable and immovable property
      1
          (1973) 4 SCC 225
      2
H         (1994) 3 SCC 1
ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ORS.                             189
               [K. M. JOSEPH, J.]

   and (d) to administer such property in accordance with law. Article      A
   29 guarantees every section of the citizens its distinct culture,
   among others. Article 30 provides that all minorities based on
   religion shall have the right to establish and administer educational
   institutions of their choice. It prohibits the State from making any
   discrimination in granting aid to an educational institution managed
                                                                            B
   by a religious minority. Under Articles 14, 15 and 16, the
   Constitution prohibits discrimination against any citizen on the
   ground of his religion and guarantees equal protection of law and
   equal opportunity of public employment. Article 44 enjoins upon
   the State to endeavour to secure to its citizens a uniform civil
   code. Article 51-A casts a duty on every citizen of India, among         C
   others, (a) to abide by the Constitution and respect its ideals and
   institutions, (b) to promote harmony and the spirit of common
   brotherhood, among all the people of India, transcending, among
   others, religious and sectional diversities, (c) to value and preserve
   the rich heritage of our composite culture, (d) to develop scientific
                                                                            D
   temper, humanism and the spirit of inquiry and reform; and (e) to
   safeguard public property and to abjure violence.
   148. One thing which prominently emerges from the above
   discussion on secularism under our Constitution is that whatever
   the attitude of the State towards the religions, religious sects and
   denominations, religion cannot be mixed with any secular activity        E
   of the State. In fact, the encroachment of religion into secular
   activities is strictly prohibited. This is evident from the provisions
   of the Constitution to which we have made reference above. The
   State’s tolerance of religion or religions does not make it either a
   religious or a theocratic State. When the State allows citizens to       F
   practise and profess their religions, it does not either explicitly or
   implicitly allow them to introduce religion into non-religious and
   secular activities of the State. The freedom and tolerance of religion
   is only to the extent of permitting pursuit of spiritual life which is
   different from the secular life. The latter falls in the exclusive
   domain of the affairs of the State. This is also clear from sub-         G
   section (3) of Section 123 of the Representation of the People
   Act, 1951 which prohibits an appeal by a candidate or his agent or
   by any other person with the consent of the candidate or his election
   agent to vote or refrain from voting for any person on the ground
   of his religion, race, caste, community or language or the use of or     H
190      SUPREME COURT REPORTS                             [2023] 3 S.C.R.


A     appeal to religious symbols. Sub-section (3-A) of the same section
      prohibits the promotion or attempt to promote feelings of enmity
      and hatred between different classes of the citizens of India on
      the grounds of religion, race, caste, community or language by a
      candidate or his agent or any other person with the consent of the
      candidate or his election agent for the furtherance of the prospects
B
      of the election of that candidate or for prejudicially affecting the
      election of any candidate. A breach of the provisions of the said
      sub-sections (3) and (3-A) are deemed to be corrupt practices
      within the meaning of the said section.
      197. Rise of fundamentalism and communalisation of politics are
C     anti-secularism. They encourage separatist and divisive forces
      and become breeding grounds for national disintegration and fail
      the parliamentary democratic system and the Constitution. Judicial
      process must promote citizens’ active participation in electoral
      process uninfluenced by any corrupt practice to exercise their
D     free and fair franchise. Correct interpretation in proper perspective
      would be in the defence of the democracy and to maintain the
      democratic process on an even keel even in the face of possible
      friction, it is but the duty of the court to interpret the Constitution
      to bring the political parties within the purview of constitutional
      parameters for accountability and to abide by the Constitution,
E     the laws for their strict adherence.
      304....How are the constitutional promises of social justice, liberty
      of belief, faith or worship and equality of status and of opportunity
      to be attained unless the State eschews the religion, faith or belief
      of a person from its consideration altogether while dealing with
F     him, his rights, his duties and his entitlements? Secularism is thus
      more than a passive attitude of religious tolerance. It is a
      positive concept of equal treatment of all religions. This attitude
      is described by some as one of neutrality towards religion or as
      one of benevolent neutrality. This may be a concept evolved by
G     western liberal thought or it may be, as some say, an abiding faith
      with the Indian people at all points of time. That is not material.
      What is material is that it is a constitutional goal and a basic feature
      of the Constitution as affirmed in Kesavananda
      Bharati [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC
      225 : 1973 Supp SCR 1] and Indira N. Gandhi v. Raj
H
    ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ORS.                                 191
                   [K. M. JOSEPH, J.]

         Narain [1975 Supp SCC 1 : (1976) 2 SCR 347] . Any step                     A
         inconsistent with this constitutional policy is, in plain words,
         unconstitutional....”
                                                          (Emphasis supplied)
       6. In State of Karnataka v. Praveen Bhai Thogadia (Dr.), 3,
this Court proclaimed:                                                              B

         “9. Our country is the world’s most heterogeneous society with a
         rich heritage and our Constitution is committed to high ideas of
         socialism, secularism and the integrity of the nation. As is well
         known, several races have converged in this subcontinent and
         they have carried with them their own cultures, languages, religions       C
         and customs affording positive recognition to the noble and ideal
         way of life — “unity in diversity”. Though these diversities created
         problems in early days, they were mostly solved on the basis of
         human approaches and harmonious reconciliation of differences,
         usefully and peacefully. That is how secularism has come to be             D
         treated as a part of fundamental law, and an unalienable segment
         of the basic structure of the country’s political system. As noted
         in S.R. Bommai v. Union of India [(1994) 3 SCC 1] freedom of
         religion is granted to all persons of India. Therefore, from the
         point of view of the State, religion, faith or belief of a particular
         person has no place and given no scope for imposition on individual        E
         citizen. Unfortunately, of late, vested interests fanning religious
         fundamentalism of all kinds vying with each other, are attempting
         to subject the constitutional machineries of the State to great stress
         and strain with certain quaint ideas of religious priorities, to promote
         their own selfish ends, undeterred and unmindful of the disharmony         F
         it may ultimately bring about and even undermine national
         integration achieved with much difficulties and laudable
         determination of those strong-spirited savants of yesteryear.
         Religion cannot be mixed with secular activities of the State and
         fundamentalism of any kind cannot be permitted to masquerade
         as political philosophies to the detriment of the larger interest of       G
         society and basic requirement of a welfare State. Religion sans
         spiritual values may even be perilous and bring about chaos and
         anarchy all around. It is, therefore, imperative that if any individual
3
    (2004) 4 SCC 684
                                                                                    H
192                SUPREME COURT REPORTS                        [2023] 3 S.C.R.


A           or group of persons, by their action or caustic and inflammatory
            speech are bent upon sowing seeds of mutual hatred, and their
            proposed activities are likely to create disharmony and disturb the
            equilibrium, sacrificing public peace and tranquillity, strong action,
            and more so preventive actions are essentially and vitally needed
            to be taken. Any speech or action which would result in
B
            ostracization of communal harmony would destroy all those high
            values which the Constitution aims at. Welfare of the people is
            the ultimate goal of all laws, and State action and above all the
            Constitution. They have one common object, that is to promote
            the well-being and larger interest of the society as a whole and
C           not of any individual or particular groups carrying any brand names.
            It is inconceivable that there can be social well-being without
            communal harmony, love for each other and hatred for none. The
            core of religion based upon spiritual values, which the Vedas,
            Upanishads and Puranas were said to reveal to mankind seem to
            be:”Love others, serve others, help ever, hurt never” and “sarvae
D
            jana sukhino bhavantoo”. One-upmanship in the name of religion,
            whichever it be or at whomsoever’s instance it be, would render
            constitutional designs countermanded and chaos, claiming its heavy
            toll on society and humanity as a whole, may be the inevitable evil
            consequences, whereof.”
E                                                           (Emphasis Supplied)
            7. In M.P. Gopalakrishnan Nair v. State of Kerala4, this Court
      declared:
            “20. It is now well settled:
            (i) The Constitution prohibits the establishment of a theocratic
F           State.
            (ii) The State is not only prohibited to establish any religion of its
            own but is also prohibited to identify itself with or favouring any
            particular religion.
            (iii) The secularism under the Indian Constitution does not mean
G           constitution of an atheist society but it merely means equal status
            of all religions without any preference in favour of or discrimination
            against any one of them.”
            8. We are of the view that the questions of law raised by petitioner
      do not arise.
H     4
          (2005) 11 SCC 45
 ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ORS.                                  193
                [K. M. JOSEPH, J.]

        9. The present and future of a country cannot remain a prisoner           A
of the past. The governance of Bharat must conform to Rule of law,
secularism, constitutionalism of which Article 14 stands out as the
guarantee of both equality and fairness in the State’s action.
        10. The founding fathers contemplated India to be a republic which
is not merely to be conflated to a body polity having an elected President        B
which is the conventional understanding. But it also involves ensuring
rights to all sections of people based on it being a democracy. It is
important that the country must move forward. For achieving the sublime
goals which are enshrined in Part IV – that is the Directive Principles,
but bearing in mind the fundamental rights also guaranteed in Part III of
the Constitution, which have been described as the two wheels of the              C
chariot of the State, both of which are indispensable, for the smooth
progress of the nation, actions must be taken which bond all sections of
the society together.
        11. The history of any nation cannot haunt the future generations
of a nation to the point that succeeding generations become prisoners of          D
the past. The golden principle of fraternity which again is enshrined in
the preamble is of the greatest importance and rightfully finds its place
in the preamble as a constant reminder to all stakeholders that maintenance
of harmony between different sections alone will lead to the imbibing of
a true notion of nationhood bonding sections together for the greater
good of the nation and finally, establish a sovereign democratic                  E
republic.We must constantly remind ourselves that courts of law, as
indeed every part of the ‘State’, must be guided by the sublime realisation,
that Bharat is a secular nation committed to securing fundamental rights
to all sections as contemplated in the Constitution.
        12. We are, therefore, of the view that the reliefs which have            F
been sought for should not be granted by this Court acting as the guardian
of fundamental rights of all under Article 32 of the Constitution of India
and bearing in mind the values which a Court must keep uppermost in its
mind - the preamble gives us clear light in this direction.
       13. The writ petition is dismissed.                                        G

Divya Pandey                                           Writ petition dismissed.
(Assisted by : Roopanshi Virang, LCRA)



                                                                                  H