SATYA RANJAN MAJHI AND ANR.versusSTATE OF ORISSA AND ORS.

A                     SATY A RAN JAN MAJHI AND ANR.
                                         v.
                         STATE OF ORISSA AND ORS.

                               AUGUST 25, 2003

B                    [V.N. KHARE Cl AND S.B. SINHA, J.]


        . Orissa Freedom ofReligion Act, 1967/0ris$a Freedom of Religion Rules,
    1989:

c          .                                                                  .
           Ss.2 and 7/rr.4 and 5-Constitutional validity of-Held, the Act has
    been held to be a valid piece of legislation by this Court•-As re1;ards the
    rules, the judgment of the High Court does not show that question regarding
    vires of sub-rule (3) of rule 5 was specifically mooted-Merely because an
    inquiry is contemplated under r.5, it does not ipso facto maki the rule
D   invalid-Furthermore, the question as to whether a rule is ultra vires or not
    must be adjudged having regard to public order in mind-Since no such
    contention was raised befo~e the High Court, it cannot be permitted to be
    raised for the first time before Sup;eme Court-Co~stitution of1ndia-Articles
    136 and 226.

E         *Rev. Stainislaus v. State of Madhya Pradesh and Ors, AIR (19'77) SC
    908, relied on.

         Constitution of India, 1950:

           Article 136-Fresh plea-Held: cannot be permitted to be raised for
F   the first time before Supreme Court.

         CIVIL APPELLATE JURISDICTION : Special Leave Petition (C) No
    16428/03 CC 7122 of 2003.

          From the Judgment and Order dated 5.3.2003 of the Orissa High Court
G   in O.J.C. No. l 0530 of 200 I.

                                        WITH

         I.A. No. I (C/delay in filing SLP)


H                                       994
                         SATYA RANJAN MAJHI v. ST ATE                           995

         Janaranjan Das, Gaourang Biswal, Swetaketu Mishra, Ms. M. Gahlot               A
    and P.C. Chhinchani for the Petitioners.

          The following Order of the Court was delivered:

          Delay Condoned.
                                                                                        B
           By means of a petition under Article 226 of the Constitution, the
    petitioners challenged Sections 2 and 7 of the Orissa Freedom of Religion
    Act, 1967 (for short "the Act") and Rules 4 and 5 of the Orissa Freedom of
    Religion Rules, 1989 (for short "the Rules"). The petition was dismissed by
    the Orissa High Court. It is against the said order and judgment, the petitioners
    are before us by means of this special leave petition.                              C
           It may be noted that this Act has been held to be a valid piece or
    legislation by this Court in Rev. Stainislaus v. State of Madhya Pradesh and
    Ors., AIR ( 1977) SC 908 wherein it has been held as under :
\
            "19. We have no doubt that it is in this sense that the word 'propagate'    D
            has been used in Article 25 (I), for what the Article grants is not the
            right to convert another person to one's own religion, but to transmit
            or spread one's religion by an exposition of its tenets. It has to be
            remembered that Article 25 (I) guarantees "freedom of conscience"
            to every citizen, and not merely to the followers of one particular         E
            religion,· and that, in tum, postulates that there is no fundamental
            right to convert another person to one's own religion because if a
            person purposely undertakes the conversion of another person to his
            religion, as distinguished from his effort to transmit or spread the
            tenets of religion, that would impinge on the "freedom of conscience"
            guaranteed to all the citizens of the country alike."                       F
          Referring to Article 25 of the Constitution of India, it was observed that
    " ...... What is freedom for one, is freedom for the other, in equal measure,
    and there can therefore, be no such thing as a fundamental right to convert
    any pel"Son to one's own religion."
                                                                                        G
          Learned counsel appearing for the petitioners, however, before us sought
    to assail sub-rule (3) of Rule 5 of the Rules which has been inserted by a
    Notification No. 63286 dated 26.11.1999. The impugned judgment does not
    show that the vi res of the aforementioned provision was specifically mooted.
    Before the High Court, the principal argument advanced on behalf of the             H
    996                        SUPREME COURT REPORTS (2003] SUPP. 2 $.C.R.

A petitioners was that the said Rules are ultra vires the rule-making power
    conta.ined in Section 7 of the Act. The High Court has dealt with the matter
    in paragraph 5 of its judgment. We have also perused the written submissions
    filed by the petitioners before the High Court, but we do not find any specific
    ground questioning the said Rule other than mentioned hereinbefore was
    raised before the High Court. Furthermore, the question as to whether a rule
B   is ultra vires or not, must be adjudged having regard to public order in mind.
    Had such a contention been raised, the State would have justified the making
    of the order, inter a/ia, o~ the ground· of maintenance of public order. Such
    <;:ontention therefore, cannot be permitted to be raised for the first time before
    this Court.                   · .
c          Merely because an inquiry is contemplated under Rule 5, it does not
    ipso facto make the Rule invalid. We, therefore, do not find any merit in the
    special leave petition. It is, accordingly, dismissed.

    R.P.                                                         Petition dismissed.