Supreme Court of India
COMMISSIONER OF POLICE AND ORS.versusACHARYA JAGADISHWARANANDA AVADHUTA AND ANR.
- Citation
- 2004 INSC 158
- Decided
- 11 March 2004
- Disposal
- Appeal(s) allowed
- Bench
- S RAJENDRA BABU
Holding
The performance of Tandava dance in public procession is not an essential or integral part of the Ananda Marga religion, so the denial of permission does not infringe Articles 25 and 26, and the appeal is allowed.
Summary
The Supreme Court examined whether the Ananda Marga sect's performance of the Tandava dance in public processions is an essential or integral part of its religion protected by Articles 25 and 26 of the Constitution. The sect, founded in 1955, introduced the dance in 1966 and later prescribed it in the 1986 edition of its doctrinal text, Carya Carya. The Court held that because the practice was introduced after the sect's formation and its removal would not fundamentally alter the character of the religion, it is not an essential religious rite. Consequently, the police commissioner's refusal to grant permission for the public procession does not violate the respondents' fundamental rights. The Court also clarified that earlier findings that Tandava dance is not essential are binding and that the High Court's contrary view was erroneous. The appeal was allowed, setting aside the order refusing permission, and the respondents were granted the right to conduct their procession subject to reasonable police regulations. The decision reaffirmed the test for essential religious practices and the limits of state regulation under public order, morality, and health.
Issues considered
- The performance of Tandava dance in public processions as an essential or integral part of Ananda Marga religion under Articles 25 and 26.
- Whether Ananda Marga qualifies as a separate religion or a denomination within Hinduism for the purpose of constitutional protection.
- The applicability of the earlier Supreme Court finding (Acharya Jagdishwarananda case) and the doctrine of res judicata.
- The permissibility of the police authority's refusal of permission on grounds of public order, morality and health.
- Whether the High Court's decision conflicts with the Supreme Court's earlier judgments (Acharya Jagdishwarananda and Bijoe Emmanuel).
- The allegation of discrimination against Ananda Marga vis‑à‑vis other religious processions under Article 14.
Legislation cited
- Code of Criminal Procedure, 1973s. Section 144
- Constitution of Indias. Article 14, s. Article 15, s. Article 19, s. Article 25, s. Article 26
Subjects
religious freedomessential religious practiceTandava danceAnanda Margapublic processionArticle 25Article 26public orderdiscriminationres judicata
Judgment
COMMISSIONER OF POLICE AND ORS.
v.
ACHARYA JAGADISHWARANANDA AVADHUTA AND ANR.
MARCH 11, 2004
[S. RAJENDRA BABU, DR. AR. LAKSHMANAN AND G.P. MATHUR, JJ.] B
Constitution of India-Articles 25 and 26-Right M profess religion-
Meaning of-Held, right extends to rituals, observances, ceremonies and modes
--
of worship which are essential or integral part of the religion-Essential or
integral part-Test for-Held, if taking away the part/practice results in C
fundamental change in character ofthe religion/belief, it is an essential/integral
part/practice-Performance ofTandava dance in public by Ananda Margis-
Held, not an essential/integral part/practice.
The Ananda Marg is a religious sect within Hindu religion founded
in 1955. Performance ofTandava dance as a religious rite for the Ananda D
Margis was introduced around 1966 but there was no such written
prescription for such dance in Carya Carya, the book containing the
relevant doctrines of Ananda Margis. The respondent sought permission
from the appellant to take out a public procession performing Tandava
dance with skulls, daggers, trident, snakes etc. The appellant refused to E
grant permission. The order of the appellant was challenged by the
respondent by way of a writ petition before the Supreme Court under
Article 32 of the Constitution of India contending that order passed by
the appellant was violative of rights of the respondent guaranteed under
Article 25 and 26 of the Constitution of India. The writ petition filed by
the respondent was dismissed by the Court by its judgment in Acharya F
Jagdishwarananda Avadhuta etc. v. Commissioner of Police, Calcutta and
Anr., (1984] 1 SCR 447 holding that the performance of Tandava dance
in public was of a more recent origin than the origin of the sect itself and
therefore, it cannot be said that the rite was an essential religious rite of
the sect. The Court further observed that even though Tandava dance may
be prescribed as a religious rite, there is no prescription for performing G
the dance in public. The Court did not find any justification for the claim
that Tandava dance should be performed in public in the religious books
of the denomination.
After the judgment, the founder of the denomination, Shri Ananda
1019 II
1020 SUPREME COURT REPORTS [2004] 2 S.C.R.
A Murtiji, introduced the prescription of performance of Tandava dance in
public in the 1986 edition of Carya Carya. The respondent again applied
for permission to take out a procession. Permission was refused by the
appellant in terms of judgment of the Court in 1charya Jagdishwarananda
Avadhuta 's case. Thereafter, the respondent filed another writ petition
B under Article 32 of the Constitution of India before the Court. The writ
petition was disposed of observing that the case should be examined by
the High Court keeping in view the judgment of the Court in Acharya
Jagdishwarananda Avadhuta 's case.
The respondent thereafter filed a writ petition before the High Court
C
challenging the order of the appellant. The Single Judge allowed the writ
petition. Upon appeal by the appellant, the Division Bench confirmed the
findings and order of the Single Judge.
--
The appellant filed appeal by way of special leave petition before the
Court. A Division Bench of the Court was of the opinion that while in
Acharya Jagdishwarananda Avadhuta's case, the Court had observed that
D Ananda Marg was not a separate religion and therefore, protection of
Article 25 of the Constitution of India was not available to it, in a
subsequent judgment of Bijoe Emmanual and Ors. v. State of Kera/a and
Ors., [1986] 3 SCC 615, the Court had observed that the said finding was
not a sequiter to the reasoning of the Court and had crept into the
E judgment of Acharya Jagdishwarananda Avadhuta 's case by some slip. The
Division Bench, finding contradiction between the two judgments, referred
the matter to a bench of three Judges.
Before the Court, amongst other grounds, the respondent urged that
the decision to prohibit Tandava dance in public was violative of Article
F 14 of the Constitution of India insofar as other religions and social
organisations were allowed to take out similar processions in the State.
The appellant contended that procession taken out by other religions
was a well established practice of those religions unlike in the case of
Ananda Margi.
G Allowing the appeal, the Court
HELD: Per majority (S. Rajendra Babu J. for himselfand G. P. Mathur,
J.)
1.1. The protection guaranteed under Articles 25 and 26 of the
H Constitution of India is not confined to matters of doctrine or belief but
COMMR. OF POLICE v. A.J. AV AD HUT A 1021
extends to acts done in pursuance of religion and, therefore, contains a A
guarantee for rituals, observances, ceremonies and modes of worship
which are essential or integral part of religion. What constitutes an integral
or essential part of religion has to be determined with reference to its
doctrines, practices, tenets, historical background etc. of the given religion.
fl030-F-GJ B
The Commissioner, Hindu Religious Endowment, Madras v. Sri
--- Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [195.;] SCR 1005; Sardar
Syedna Taher Saifuddin Saheb v. The State of Bombay, (1962) Supp. 2 SCR
496 and Seshammal v. State of Tamilnadu, [1972) 2 SCC 11, referred to.
1.2. Essential part of a religion means the core beliefs upon which C
a religion is founded. Essential practice means those practices that are
fundamental to follow a religious belief. It is upon the cornerstone of
essential parts or practices the superstructure of religion is built. Without
which, a religion will be no religion. Test to determine whether a part or
practice is essential to the religion is to find out whether the nature of the D
religion will be changed without that part or practice. If the taking away
of that part or practice could result in a fundamental change in the
character of that religion or in its belief, then such part could be treated
as an essential or integral part. Such permanent essential part is what is
protected by the Constitution of India. Nobody can say that essential part
or practice of one's religion has changed from a particular date or by an E
event. Such alterable parts ·or practices are definitely not the 'core' of
religion where the belief is based and religion is founded upon. It could
only be treated as mere embellishments to the non-essential part or
practices. (1030-H; 1031-A-D]
1.3. In a given case it is for the Court to decide whether a part or F
practice is an essential part or practice of a given religion. (1031-FI
2.1. If in the earlier litigations the Court arrives at a conclusion of
fact regarding the essential part or practice of a religion, it will create
problematic situations if the religion is allowed to circumvent the decision
of Court by making alterations in its doctrine. Nobody could ever revisit G
such a finding of fact. Such an attempt will result in an anomalous situation
and could only be treated as a circuitous way to overcome the finding of
a Court. If subsequent alterations in doctrine could be allowed to create
new essentials, the judicial process will then be reduced into a useless
formality and futile exercise. Once there is a finding of fact by the
competent Court, then all other bodies are estopped from revisiting that H
1022 SUPREME COURT REPORTS [2004] 2 S.C.R.
A conclusion. [1031-F-H; 1032-A)
N. Adithayan v. Travancore Devaswom Board, (20021 8 SCC 106,
referred to.
2.2. Practice of Tandava dance in public is not an essential part of
B Ananda Margi faith. Ananda Margi order was founded in 1955. Tandava
dance was introduced as a practice in 1966. Even without the practice of
Tandava dance Ananda Margi order was in existence. Therefore, Tandava
dance is not the "core" upon which Ananda Margi order is founded.
(1032-B; 1031-D-E)
C 3. The observation of the Court in Acharya Jagdishwarananda
Avadhuta 's case that Ananda Marga was not a separate religion and
therefore, Article 25 of the Constitution of India was not applicable, was
not the basis of the reasoning of the Court on any of the issues in the said
case. The Court is in agreement with the finding in Bijoe Emmanuel's case
that said observation appears to have crept into the judgment of the Court
D in Acharya Jagdishwarananda Avadhuta 's case by some slip.
(1032-G-H; 1033-Bl
Acha1ya Jagdishwarananda Avadhuta etc. v. Commissioner of Police,
Calcutta and Anr., [1984) 1 SCR 447 and explained.
E Bijoe Emmanuel and Ors. v. State of Kera/a and Ors., (1986) 3 SCC
615, affirmed.
Per Dr. A. R. lakshmanan, J. (dissenting)
4.1. Whilst Constitution of India is neutral in religion, it, at the same
time, is benign and sympathetic of all religious creeds however
F unacceptable they may be in the eyes of non-believers. Articles 25 and 26
of the Constitution of India embody a tolerance to all religions.
(1051-C-D)
4.2. The full concept and scope of religious freedom guaranteed
G under Articles 25 and 26 of the Constitution of India is that there are no
restraints upon the free exercise of religion according to the dictates of
one's conscience or upon the right freely to profess, practice and propagate
religion save those imposed under the police power of the State and the
other provisions of Part III of the Constitution. This means the right to
worship God according to the dictates of one's conscience. Man's relation
H to his God is made no concern for the State. (1053-G-H; 1054-A)
COMMR. OF POLICE v. A.J. AVADHUT A 1023
---- 4.3. The expression "religion" has not been defined in the A
Constitution of India and it is incapable of specific and precise definition.
Religion includes worship, faith and extends to even rituals. Belief in
religion is belief of practice of a particular faith, to preach and to profess
it. Mode of worship is integral part of religion. Forms and observances of
religion may extend to matters of food and dress. An act done in
--- furtherance of religion is protected by the Constitution of India. A person B
believing in a particular religion has to express his belief in such acts which
he thinks proper and to propagate his religion. Protection under Articles
25 and 26 of the Constitution of India extend guarantee for rituals and
observances, ceremonies and modes of worship which form part and parcel
of religion. [1058-B-E) C
4.4. Any practice becomes part of religion only if such practice is
found to be essential and integral part of the religion. It is only those
practices which are integral part of religion that are protected by Articles
25 and 26 of the Constitution of India. What would constitute an essential
part of religion or religious practice is to be determined with reference to D
the doctrine of a particular religion which includes practices which are
regarded by the community as part and parcel of that religion. Test has
to be applied by the courts whether particular religious practice is
regarded by the community practising that particular practice as integral
part of the religion or not. It is also necessary to decide whether the E
particular practice is religious in character or not and whether the same
can be regarded as an integral and essential part of religion which has to
be decided based on evidence. If the conscience of a particular community
has treated a particular practice as an integral or essential part of religion,
the same is protected by Articles 25 and 26 of the Constitution of India.
[1058-E-G) F
The Commissioner, Hindu Religious Endowment, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954] SCR 1005; Himat
Lal K. Shah v. Commissioner of Police, Ahmedabad and Anr., [1973) 2 SCR
266; Commissioner of Police v. Acharya Jagdishwarananda, AIR (1991)
Calcutta 263; Durga Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors., G
(1962) 1 SCR 383; His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar
Swami etc. v. The State of Tamil Nadu, AIR (1972) SC 1586; Sardar Syedna
Taher Saifuddin Saheb v. .The State of Bombay, [1962) Supp. 2 SCR 496;
. Seshanmal v. State of Tamil Nadu, [1972] 2 SCC 11 and N. Adithyan v.
Travancore Devaswom Board, [2002) 8 sec 106, referred to. H
1024 SUPREME COURT REPORTS [2004] 2 S.C.R.
A Constitutional Law of India 4th Edn. by Seervai, Jrlataraja in Art, Thought
and Literature by C. Sivaramamurti. referred to.
4.5. The freedom to act and practice religion can be subject to
regulations. However, in every case the power of regulation must be
exercised with the consciousness that the subject of regulation is a
B fundamental right of religion, and as not to unduly infringe the protection
given by the Constitution. Further in the exercise of the power to regulate,
the authorities cannot sit in judgement over the professed views of the
adherents of the religion and to determine whether the practice is
warranted by the religion or not. (1049-H; 1050-A-B]
C Ratilal Pannachand Gandhi v. The State ofBombay and Ors., [1954) SCR
1005; Jamshedji Soonabai, AIR (1933) Born. 122, Commissioner H.R.E.,
Madras v. Lak.shmandra, (1954) SCR 1006; Sardar Syedna Taher Saifuddin
Saheb v. The State ofBombay, [1962) Supp. 2 SCR 496 and Sri Venkataramana
Devaru and Ors. v. State of Mysore and Ors., AIR (1958) SC 255, referred
to.
D
Jesse Cantwell v. State of Connecticut, [1939) 84 L. Ed. 1213 and
United States v. Ballard, [1943] 88 L. Ed. 1148, referred to.
4.6. Though the freedom of conscience and religious belief are
absolute, the right to act in exercise of a man's freedom of conscience arid
E freedom of religion cannot override public interest and morals of the
society and in that view it is competent for the State to suppress such
religious activities which are prejudicial to public interest. That apart, any
activity in furtherance of religious belief must be subordinate to the
criminal laws of the country. Thus polygamy or bigamy may be prohibited
or made a ground ·of disqualification for the exercise of political rights,
F notwithstanding the fact that is in accordance with the creed of a religious
body. In an organised society there cannot be any individual right which
is injurious to the community as a whole. At the same time, the police
power is not absolute and must not be arbitrary or oppressive. In other
words, the police power must be exercised for preservation of the
G community from injury. What Constitution of India attempts to do is to
strike a balance between individual liberty and social control. There are
two limbs to religious freedom contained in Article 25 of the Constitution
of India. While one limb guarantees the right the other limb incorporates
restrictions on the exercise of the right so that they may not conflict with
public welfare or morality. [1054-B-C; E-FJ
H Parthasaradi Ayyangar and Ors. v. Chinakrishna Ayyangar, ILR (5)
COM MR. OF POLICE v. A..I. AV ADI-I UTA 1025
Madras 304 and Ghulam Abbas v. State of UP., 1198211SCR1077, referred A
to.
4.7. Freedom of conscience and religious belief cannot be set up to
avoid those duties which every citizen owes to the nation; e.g. to receive
military training, to take an oath expressing willingness to perform
military service and so on. (1054-A-B] B
--- 4.8. The concept of "public order" which is a permissible restriction
under Article 25(1) of the Constitution of India needs to be distinguished
from the connotation "law and order". "Public order" has a larger
connotation than "law and order". Contravention of law to effect public
order must affect the community or the public at large. A mere C
disturbance of law and order leading to disorder is not one which affects
"public order". (1041-F-G]
Dr. Ram Manohar Lohia v. State of Bihar and Ors., (1966) 1 SCR 709,
referred to.
5.1. The performance of Tandava dance in public procession forms
D
part of the Ananda Margis religion and is also a matter of religion within
the meaning of Articles 25 and 26 of the Constitution of India. (1045-E)
5.2. Although the specific introduction of Tandava dance in public
procession may have been recent, this does not detract from the fact that E
the Tandava dance is part of the religion of Ananda Margis. In any
religion, practices may be introduced according to the decisions of the
spiritual Head. If these practices are accepted by the followers of such
spiritual Head as a method of achieving their spiritual upliftment, the fact·
that such practice was· recently introduced cannot make it anytheless a
matter of religion. [1043-F-G] F
5.3. The tenets of the Ananda Margi are both oral and written as in
the case of many religions. The fact that there were no writings to show
to the Court that Tandava dance is to be performed in public, did not
negative the existence of such precepts. Moreover, in the 1986 edition of
Carya Carya specific mention was made by Anand Murtiji of the G
requirement of Tandava dance in procession on special functions and
festivals. [1048-H; 1049-A-B]
- 5.4. The Ananda Margis cannot be deprived of their right to practice
their religion in the manner prescribed by their religious preceptor, except
on the grounds of public order, morality and health. (1045-E-F] H
1026 SUPREivtE COURT REPORTS [20041 2 S.C.R.
A 5.5. In the orders by which the permission has been refused, the
Police Authorities have refused permission in terms of the order of the
Court in Acharya Jagdishwarananda Avadhuta 's case. The Court in the said I
case had never directed the said"authorities not to accede to the I
performance of the Tandava dance in public procession. It was, therefore,
B wrong for the State Authorities to refuse permission purportedly in terms
of the Court's· orders in Acharya Jagdishwarananda Avadhuta 's case.
(1045-GI
Acharya Jagdishwarananda Avadhv.ta etc. v. Commissioner of Police,
Calcutta and Anr., [1984] 1 SCR 447, referred to.
c 5.6. The order refusing permission do not contain any reference to ·
public order of morality. However, the appellants, at the time of hearing
of this appeal, tried to improve their case by affidavits which cannot at
all be permitted. The reason justifying refusal of permission should have
appeared in the order refusing permission itself. The only reason given
D was the Court's order in Acharya Jagdishwarananda Avadhuta 's case. These
reasons cannot now be modified or supplemented by way of an affidavit
in the proceedings. {1045-H; 1046-A-B]
Mohinder Singh Gill v. The Chief Election Commissioner, AIR (1978)
SC 851 and Acharya Jagdishwarananda Avadhuta etc. v. Commissioner of
E Police, Calcutta and Anr., [1984) 1 SCR 447, referred to.
6.1. If one religious denomination is allowed to carry its religious
practice but another religious denomination is restrained from carrying
on religious practice and almost similar religious practices, the same makes
out a clear case of discrimination in violation of the principles of Article
F 14 of the Constitution oflndia. [1047-E-F]
6.2. It is not for the appellant to give his disapproval to practice of
a particular sect which are in his opinion not well established. To allow
any authority to judge the truth or falsity of a religious belief or practice
G is to destroy the guarantee of religious freedom in the Constitution.
[1051-B]
7. The appellant has got power to regulate assemblies, meetings and
processions in public places etc. He is entitled to prescribe the route by
which and the times at which such processions may pass, in order to keep
H the public places and prevent obstructions on the occasions of such
COMMR. OF POLICE v. A.J. AVADHUTA [RAJENDRA BABU, J.] I 027
assemblies, meetings and processions and in the ~eighbourhood of places A
of worship during the time of public worship. The authorities concerned
can step in and take preventive measures in the interest of maintenance
of law and order if such religious processions disturb law and order.
(1059-E-F; 1057-B(
8. The contention that the word 'religion' under Article 25(1) of the B
Constitution oflndia does not include sect of religion of Ananda Marga
being declared as religious denomination does not qualify for the same
protection as religion is not tenable. The Ananda Margis are·a religious
denomination and as such art entitled to the protection under Articles 25
and 26(b) of the Constitution of India for their beliefs and practices . C
including their practice ofTandava dance in a procession or public place.
(1049-D-E; 1046-E-F(
Acharya Jagdishwarananda Avadhuta eic. v. Commissioner of Police,
Calcutta and Anr., (1984) 1 SCR 447; The Commissioner, Hindu Religious
Endowment, Madras v. Sri Lakshmindra Thirtha Swamiar ofSri Shirur Mutt, . D
(1954) SCR 1005 and Sri Venkataramana Devaru and Ors. v. State ofMysore ·
and Ors., AIR (1958) SC 255, referred to. f
P.MA. Metropolitan and Ors. etc. etc. v. Moran Mar Marthoma and
Anr. etc. etc., AIR (1955) SC 2001 and Mohd. Hanif Quareshi and Ors. v.
The State of Bihar, (1959] SCR 629, cited. E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6230 of
1990.
From the Judgment and Order dated 8.11.90 of the Calcutta High Court
in FMAT No. 1451 of 1990.
F
Tapas Ray, H.K. Puri and Bijan Ghosh for the Appellant.
T.R. Andhyarujina, Ranjan Dwivedi, Radha Shyam Sharma, Fieroze
Ahmad and Ashish Chugh for the Respondents.
The Judgment of the Court was delivered by G
RAJENDRA BABU, J. This is second round of litigation. In the first
round of litigation question raised before this Court was whether performance
of Tandava dance in public is an essential practice of Ananda Margi order or
not. This court in Acharya Jagdishwaranda Avadhuta_ and Ors. v. The
Commissioner ofPolice, Calcutta and Anr., [I 983] 4 SCC 522, (First Ananda H
1028 SUP\lEME COURT REPORTS [2004] 2 S.C.R.
A Margi case), held that Tandava dance in public is not an essential rite of
Ananda Margi faith. ,Subsequent to the first case, it appears that Ananda
. Murti Ji-founder of that order prescribed to perform Tandava dance in public
as an essential religious practice in Carya Carya, a book containing the relevant
doctrines. Based on this, Ananda Margis sought permission of the
B Commissioner of Police to· perform Tandava dance in public. The
Commissioner accorded permission to take out Tandava dance without knife,
live snake, trident or skull. This was challenged by the Respondents herein
before this Court by filing Writ Petition (Civil) Nos 1317-18of1987. This
-
Court with the following observation disposed it of: .
c "We are of the view that these cases should appropriately be examined
· by the High Court keeping in view that has been said by this Court
in the Judgment in Acharya Jagdishwaranda Avadhuta and Ors. v.
The Commissioner of Police, Calcutta and Anr., reported in (1984) 1
SCR 447. Petitioners are at liberty to go before Hi_gh Court."
D Firstly a Single Judge and subsequently a Division Bench of the Calcutta
High Court arrived at the conclusion that taking out Tanda-;a dance in public
carrying skull, trident etc is an essenti~I part of Anand~ Margi faith and
Commissioner of Police could not impose conditions to it: This decision is
now under challenge. -
E When this matter came up for consideration before this Court, a Bench
of two learned Judges made an order on 13.11.1992 as fol\ows:-
"After hearing the parties for sometime and having considered the
-
decision of the three learned Judges of this Court in Acharya
Jagdishwaranand Avadhuta etc. v. Commissioner of Police, Calcutta
F and Anr., [1984) I SCR 447 we are of the view that this is a matter
which requires consideration by a Constitution Bench of this Court.
Hence, we request the learned Chief Justice to constitute the Bench
as early as possible for hearing of the matter".
On 4.12.2001 a Constitution Bench of this Court considered this matter
G and noticed that (i) that the Bench does not express any difficulty in following
the earlier judgment, (ii) that they do not set out any substantial question of
law which requires the decision of a Constitution Bench since that order
merely stated that the matter should be heard and decided by a Constitution
-
l Bench. The Constitution Bench felt that in those circumstances there was no
H justification for hearing the appeal by the Constitution Bench and therefore
COMMR. OF POLICE r. A..1. AVADHUTA [RAJENDRA BABU. J.] I 029
placed the matter back before the two learned Judges for final disposal who A
in their turn made a referen.ce to a Bench of three Judges.
The relevant question herein for consideration is whether the High
Court is correct in it's finding that Tandava dance is an essential and integral
part of Ananda Margi faith based on the revised edition of Carya Carya. A
bench consisting of three judges of this Court in first Ananda Margi case B
arrived at a unanimous conclusion on facts that Tandava dance in public is
not an essential and integral part of Ananda Margi faith. In order to arrive
at this conclusion this Court inter alia took the following four aspects into
account.
I. Shri. Prabhat Ranjan Sarkar otherwise known as Shri Ananda C
Murti, founded a socio-spiritual organization claimed to have been
dedicated to the service of humanity in different spheres of life
such as physical, mental and spiritual, irrespective of caste, creed
or colour, in the year 1955.
2. Ananda Marga contains no dogmatic beliefs and teaches the yogic D
and spiritual science to every aspirant.
3. Tandava dance was not accepted as an essential religious rite of
Ananda Margis in 1955 when that order was first established. It
was introduced for the first time as a religious rite in or around
1966.
E
4. Ananda Marga is a religious denomination of the Shiviate order,
which is a well-known segment of Hindu religion.
After taking into account of all the relevant facts~ including the above,
---- this Court held:
"Ananda Marga as a religious order is of recent origin and Tandava
F
dance as a part of religious rites of that order is still more recent. It
is doubtful as to whether in such circumstances Tandava dance can
be taken as an essential religious rite of the Ananda Margis. Even
conceding that is so, it is difficult to accept Mr. Tarkunde's argument G
that taking out religious processions with Tandava dance is an essential
religious rite of Ananda Margis. On the basis of the literature of the
Ananda Marga denomination it has been contended that there is
prescription of performance of Tandava dance by every follower of
Ananda Marga. Even conceding that Tandava dance has been H
1030 SUPREME COURT REPORTS (2004] 2 S.C.R.
A . prescribed as a religious rite for every follower of the Ananda Marga
it does not follow as a necessaty corollary that Tandava dance to be
performed in the public is a matter of religious rite"
By the above finding this Court was categorical in it's judgment that
Tandava dance in public is not an essential part of religious rites of Ananda
B Margi faith. The conclusion arrived at by this Court regarding the non essential
nature of Tandava dance to Ananda Margi faith was principally based on the
fact that the order itself is of recent origin and the practice of dance is still
more recent. Court even went to the extent of assuming that Tandava dance
was prescribed as a rite and then arrived at the conclusion that taking out
C Tandava dance in public is not essential to Ananda Margi faith. After arriving
at the above ratio, the Court further added that -
"In fact, there is no justification in any of the writings of Shri Ananda
Murti that Tandava dance must be performed in public. At least none
could be shown to us by Mr. Tarkunde despite an enquiry by us in
that behalf."
D
This observation cannot be considered as a clue to reopen the whole
finding. By making that observation the Court was only buttressing the finding
that was already arrived at. The learned judges of the High Court wrongly
proceeded on the assumption that the finding of this Court regarding the non-
E essential nature of Tandava dance to the Ananda Margi faith is due to the
non-availability of any literature or prescriptions by the founder. The High
Court is under the wrong impression that an· essential part of religion could
be altered at any subsequent point of time.
The protection guaranteed under Articles 25 and 26 of the Constitution
F is not confined to matters of doctrine or belief but extends to acts done in
pursuance of religion and, therefore, contains a guarantee for rituals,
observances, ceremonies and modes of worship which are essential or integral
part of religion. What constitutes an integral or essential part of religion has
to be determined with reference to its doctrines, practices, tenets, historical
G background etc. of the given religion. (See generally the Constitution bench
decisions in The Commissioner v. LT Swamiar of Srirur Mutt, [1954] SCR
1005, SSTS Saheb v. State of Bombay, [l 962] Supp 2 SCR 496, and Seshammal
v. State of Tamilnadu, [1972] 2 SCC 11, regarding those aspects that are to
be looked into so as to determine whether a part or practice is essential or
not). What is meant by 'an essential part or practices of a religion' is now
H the matter for elucidation. Essential part of a religion means the core beliefs
COMMR. OF POLICE v. A.J. AVADHUTA [RAJENDRA BABU. J.] 1031
upon which a religion is founded. Essential practice means those practices A
" ·that are fundamental to follow a religious belief. It is upon the cornerstone
of essential parts or practices the superstructure of religion is built. Without
which, a religion will be no religion. Test to determine whether a part or
practice is essential to the religion is to find out whether the nature of religion
will be changed without that part or practice. If the taking away of that part B
- or practice could result in a fundamental change in the character of that
religion or in its belief, then such part could be treated as an essential or
integral part. There cannot be additions or subtractions to such part. Because
it is the very essence of that religion and alterations will change its fundamental
character. It is such permanent essential parts is what is protected by the
Constitution. No body can say that essential part or practice of one's religion C
has changed from a particular date or by an event. Such alterable parts or
practices are definitely not the 'core' of religion where the belief is based and
religion is founded upon. It could only be treated as mere embellishments to
the non-essential part or practices.
Here in this case Ananda Margi order was founded in 1955. Admittedly, D
Tandava dance was introduced as a practice in 1966. Even without the practice
of Tandava dance (between 1955 to 1966) Ananda Margi order was in
existence. Therefore, Tandava dance is not the 'core' upon which Ananda
Margi order is founded. Had Tandava dance been the core of Ananda Margi
faith, then without which Ananda Margi faith could not have existed.
E
There is yet another difficulty in accepting the reasoning of the High
Court that a subsequent addition in Carya Carya could constitute Tandava
dance as essential part of Ananda Margi faith. In a given case it is for the
Court to decide whether a part or practice is an essential part or practice of
a given religion. As a matter of fact if in the earlier litigations the Court F
arrives at a conclusion of fact regarding the essential part or practice of a
--- religion it will create problematic situations if the religion is allowed to
circumvent the decision of Court by making alteration in its doctrine. For
example, in N Adithayan v. Travancore Devaswom Board, [2002] 8 SCC
106, this Court found that a non-brahmin could be appointed as a poojari
(priest) in a particular temple and it is not essential to that temple practice to G
appoint only a brahmin as poojari. Is it open for that temple authorities to
subsequently decide only brahmins could be appointed as poojaris by way of
some alterations in the relevant doctrines? We are clear that no party could
-- ever revisit such a finding of fact. Such an attempt will result in anomalous
situations and could only be treated as a circuitous way to overcome the H
1032 SUPREME COURT REPORTS (2004] 2 S.C.R.
A finding of a Court. If subsequent alterations in doctrine could be allowed to _............,.
create new essentials, the judicial process will then be reduced into a useless
formality and futile exercise. Once there is a finding of fact by the competent
Court, then all other bodies are estopped from revisiting that conclusion. On
this count also the decision of High Court is liable to be set aside.
B In the result, we respectfully adopt the finding of this Court in the first
Ananda Margi case and allow the instant appeal. Since we find that practice
of Tandava dance in public is not an essential part of Ananda Margi faith,
there is no need to look into any other arguments advanced before us. The
order in the Writ Petition as affirmed by the Division Bench is set aside and
C the Writ Petition is dismissed.
Before patting with this matter, it is necessary for us to refer to the
observations made by this Court in Bijoe Emmanuel and Ors. v. State of
Kera/a and Ors., (1986] 3 SCC 615, because reference to three Judges'
Bench has arisen on account of these observations. In Bijoe Emmanuel's case
D (supra) this Court adverted to the decision of this Court in the earlier round
of litigation in First Ananda Margi case (supra) and observed as follows :-
"The question in that case was whether the Ananda Margis had
a fundamental right within the meaning of Article 25 or Article
26 to perform Tandava dance in public streets and public places.
E The court found that Ananda Marga was a Hindu religious
denomination and not a separate religion. The court examined the
question whether the Tandava dance was a religious rite or practice
essential to the tenets of the Ananda Marga and found that it was
not. On that finding the court concluded that the Ananda Marga
had no fundamental right to perform Tandava dance in public
F
--
streets and public places. In the course of the discussion, at one
place, there is found the following sentence :
'Mr. Tarkunde for the petitioner had claimed protection of
Article 25 of the Constitution but in view of our finding that
Ananda Marga was not a separate religion, application of
G Article 25 is not attracted.'
The sentence appears to have crept into the judgment by some
slip. It is not a sequiter to the reasoning of the court on any of
the issues. In fact, in the subsequent paragraphs, the Court has
expressly proceeded to consider the claim of the Ananda Marga
H
COMMR. OF POLICE v. A.J. AYADHUTA [DR. AR. LAKSHMANAN . .I.] I 033
to perform Tandava dance in public streets pursuant to the right A
claimed by them under Article 25( I)."
We respectfully agree with what has been stated above in Bijoe
Emmanuel's case (supra) insofar as the First Ananda Margi case is concerned.
As noticed therein, these observations are not the basis of the reasoning of
the court on any of the issues. Therefore, it would not affect the final outcome B
--- of the case.
The appeal is allowed accordingly.
DR. AR. LAKSHMANAN, J. This appeal stems from the judgment
and order dated 08.11.1990 passed by the Division Bench of the Calcutta C
High Court in F.M.A.T. No. 1451of1990 dismissing the appeal filed by the
Commissioner. of Police with a directive to the effect that "The Police
Authorities should permit the Ananda Margis to perform the Tandava dance
in public processions on the occasion of their principal religious functions
listed in prayer (b) of the writ petition on their undertaking to maintain peace D
and discipline on such occasions." The Division Bench affirmed the judgment
and order dated 07.05.1990 passed by the learned Single Judge of the said
Court allowing the writ petition of the respondents herein with a declaration
that "Tandava dance as prescribed for the followers of Ananda Margis is an
essential and integral part of the religion of the said religious denomination
and that they have a right to perform such a dance in public on the occasions · E
prescribed in this behalf subject to the restrictions under Articles 25 and 26
of the Constitution of India and the Police Authorities have no jurisdiction to
impose ban on such a dance."
This q1se has a long and chequered carrier. The facts are stated as
under:- F
- Ananda Murtiji introduced Tandava dance requiring it to be performed
daily by an Ananda Margi as one of his religious rites.
What is Tandava Dance:
G
According to the Ananda Margis, Lord Shiva was the originator of
Tandava dance and introduced it about six thousand five hundred years back
for physical, mental and spiritual upliftment of every human being. Tandava
dance is to be performed with a skull, knife and Trishul. It is also customary
to hold a Iathi and a damroo and sword. Dancer may also use live snake in H
1034 SUPREME COURT REPORTS [2004] 2 S.C.R.
A place of skull in day time and fire mashal's or damroo during night time.
Tandava dance lasts for a few minutes where two or three persons dance by
lifting one leg to the level of chest and then bringing it down and lifting the
other. Ananda Murtiji by incorporating Tandava dance in the system of beliefs
of Ananda Marga wanted to bring it to its original glory. Tandava dance
symbolises 'life' and 'death'. The skull represents death and the knife
B represents life. The Ananda Margis are followers of Shaivite order within
Hindu religion and Ananda Murtiji directed perfonnance of Tandava dance
as one of the prescriptions of religious rite to be followed by an Ananda
Margi in private life and public places.
c tridentThe respondents took out a procession with human skulls, daggers,
etc. on 10.08.1979. According to the police, the procession was to
take out violating prohibitory ban in regard to carrying of those articles in
processions in public streets. In that circumstances, the Police Authorities
declared the assembly unlawful and the police force was compelled to
intervene. The Commissioner of Police, Calcutta made repetitive orders under
D Section 144 of the Code of Criminal Procedure, 1973 since August, 1979,
directing that no member of a procession or assembly of five or more persons
should carry any fire arms, explosive, swords, spears, knives, trident, lathis
or any article which may be used as weapon of offence or any article likely
to cause annoyance to the public. This order of the Police Commissioner was
E challenged by the General Secretary of the Ananda Marga in a Writ Petition
No. 903 of 1980 before the High Court of Calcutta. The Calcutta High Court,
by order dated 23.09.1980, rejected the said writ petition for the reasons
recorded therein. Again the Commissioner of Police, Calcutta made a fresh
order under Section 144 of the Code of Criminal Procedure, 1973 on
29 .03 .1982 wherein the same restraints as mentioned in the earlier order were
F imposed and an application for permission to take out a procession on the
prohibited streets accompanied with Tandava dance was rejected by him. The
said order refusing permission by the Police Commissioner was challenged
by filing a writ petition under Article 32 of the Constitution of India in this
Court being registered as Writ Petition Nos. 6890 and 7204 of 1982.
G This Court passed an order in the said writ petition rejecting the same
on the finding that performance of Tandava dance in procession in the public
streets or in gatherings in public places was not an essential religious rite of
the followers of the Ananda Marga. This Court also held as under:
"The claim of Ananda Marga as a separate religion was not
H
COMMR. OF POLICE v. A..I. AVADHUTA [DR. AR. LAKSHMANAN. J.] 1035
acceptable in view of the clear assertion that it was not an A
institutionalised religion but a religious denomination. Ananda
Margis belong to the Shaivite order and as such they belong to
the Hindu religion. Accordingly, they were not entitled to get the
protection of Article 25 of the Constitution of India.
The Courts have the power to determine whether a particular B
rite or observance is regarded as essential by the tenets of a
particular religion.
Ananda Margi as a religious order is of recent origin and
Tandava dance as a part of religious rite of that order is still more
recent. It is doubtful as to whether in such circumstances Tandava C
dance can be taken as an essential religious rite of Ananda Margis.
Even conceding it is so it is difficult to accept Mr. Tarkunde's
argument that taking out religious processions with Tandava dance
is an essential religious rite of Ananda Margis.
Even conceding that Tandava dance has been prescribed as a D
religious rite for every follower of Ananda Margis it does not
follow as a necessary corollary that Tandava dance to be performed
in the public is a matter of religious rite. In fact, there is no
justification in any of the writings of Shri Ananda Murti that
Tandava dance must be performed in public,, ........ We are,
therefore, not in a position to accept the contention of Mr. E
Tarkunde that performance of Tandava dance in a procession or
at public place is an essential religious rite to be performed by
every Ananda Margi."
The petitioners have no fundamental right within the meaning
of Article 25 or 26 to perform Tandava dance in public streets F
and public places."
According to the appellants, no perm1ss1on was granted to the
respondents' organisation for taking out a similar procession. The respondents
performed Tandava dance with human skulls, knives etc. violating the
conditions of permission. On 07.05.1987, the respondents made an application G
to the Commissioner of Police, Calcutta seeking for permission for taking out
procession. By order dated 25.05.1987, the permission was refused by the
Commissioner of Police, Calcutta. Under Article 32 of the Constitution of
India, Writ Petition (Civil) Nos. 1317-18of1987 was filed by the respondents
in this Court challenging the said order of the Police Authorities refusing H
1036 SUPREME COURT REPORTS [2004] 2 S.C.R.
A pennission which was disposed of by this Court with the following observation:
"We are of the view that these cases should appropriately be
-
examined by the High Court keeping in view that has been said
by this Court in the judgment in Acharya Jagdishwaranand
Avadhuta etc. v. Commissioner of Police, Calcutta and Anr.,
B reported in [1984] 1 SCR 447. Petitioners are at liberty to go
before the High Court."
Pursuant to the aforesaid liberty granted by this Court, a writ application
was moved by the respondents praying for quashing the orders dated
---
20.05.1987 and 27.05.1987 of appellant No. I - Commissioner of Police and
C also for a directive upon the appellants commanding them to allow the
respondents to perform Tandava dance in public procession of Ananda Marga
on the occasion of its principal religious function and festival such as
(i) Ananda Pumima;
D (ii) Shravani Pumima;.
(iii) Bijaya Dashami;
(iv) Dipavali;
E
(v) New Year Day;
(vi) Falguni Purnima (Vasanttotsava) and
(vii) Dharma Maha Chakra and Dhanna Maha Sammelans.
-
The respondents based their right to perform Tandava dance m
procession and in public gathering on the basis of the prescription of their
F Guru Shri Ananda Murtiji in the.recent fourth Edition of Carya Carya Part
I published in the year 1986. The writ application was heard by a learned
Single Judge who passed an order allowing the writ applica.!ion upon holding,
inter alia, that Tandava dance as prescribed for followers of Ananda Marga
was an essential and integral part of the religion of the said religious
denomination and that they have right to perfonn such a dance on the occasion
G prescribed in this behalf subject to the restrictions imposed under Articles 25
and 26 of the Constitution of India and the Court was powerless to examine
as to whether such prescription of their Guru formed essential and integral
part of the religious rite to be observed by the Ananda Margis. Against the
H
said judgment and order, the appellants filed an appeal before the Division
Bench and obtained stay of operation of the said order of the learned Single -
COMMR. OF POLICE v. A..I. AYADHUTA [DR. AR. LAKSHMANAN . .I.] I 037
Judge. The stay application and the appeal were heard by the Division Bench A
of the High Court of Calcutta on several dates. The impugned judgment and
order of the Division Bench of the High Court of Calcutta was passed on
08.11.1990 dismissing the stay application and the appeal and affirming the
order of the learned Single Judge of the High Court of Calcutta. Aggrieved
by the impugned judgment, the appellants have approached this Court by
way of Special Leave Petition No. 16233 of 1990. ')n 21.12.1990, this Court B
granted leave in this matter and directed to continue the status quo until
further orders. A direction was also issued to expedite the appeal and to post
the appeal as early as possible. On 13 .11.1992, this Court, after hearing the
parties for sometime and having considered the decision of the three learned
-- Judges of this Court in Achatya Jagdishwaranand Avadhuta etc. 's case (supra),
was of the view that this is a matter which requires consideration by a
Constitution Bench of this Court. The matter was placed before the Constitution
C
Bench. The Constitution Bench, by an order dated 04.12.200 l, observed that
there is no justification for the hearing of this civil appeal by a Constitution
Bench and it must be placed before a Bench of two learned Judges for final
disposal. When the matter came up before the Division Bench of this Court D
on 17.01.2002, the Bench expressed their opinion as follows:
"After hearing the counsel for the parties at length, we are of
the opinion that seemingly there is a contradiction in the order
passed by the Division Bench of the Calcutta High Court
(impugned judgment); the three-Judge Bench judgment in Acharya E
-- Jagdishwaranand Avadhuta and Ors. (supra) and the order passed
by a two-Judge Bench in Bijoe Emmannuel and Ors. (supra). In
the latter case, the two-Judge Bench has explained in judgment of
this Court in Acharya Jagdishwaranand Avadhuta and Ors.,
(supra) and held that Ananda Margi could claim the benefit of F
Article 25(1) having open the question regarding applicability of
Article 25 to the Ananda Margis. The High Court based its decision
on the latter judgment and gave the imp1Jgned judgment holding
that the order passed by the appellants was violative of Articles
25 and 26 of the Constitution of India.
G
We feel that the observation made by the two-Judge Bench in
Bijoe Emmannuel and Ors., (supra) that Article 25 did not apply
to Ananda Margis had crept in the latter judgment by some slip
-· does not appear to be correct. In our view, this Court in its
judgment in Acharya Jagdishwaranand Avadhuta etc. (supra) had
reached a definite conclusion that the claim of the respondents H
1038 SUPREME COURT REPORTS [2004] 2 S.C.R.
A that the action of the appellant was violative of fundamental rights
of the respondents within the meaning of Articles 25 and 26 of
the Constitution of India had to be rejected. It is ·apparent from
the observation made by the Court in para 15 .of its order
reproduced in the earlier part of this grder.
B Another aspect which is required to be considered is whether
the High Court was right in holding that prescribirtg of Tandava
Dance with damroo, skull and trishul as a necessary religious rite
by the Ananda Margis by their Guru after the rendering of the
judgment by this Court would translate into a practice and the
--
religious rites of the Ananda Margis or not. As the eailier judgment
·C had been rendered by a three-Judge Bench, it would be appropriate
that this aspect is also examined by a three-Judge Bench.
In order to avoid contradiction and inconsistency in the orders
passed by this Court, we are of the view that this matter requires
to be considered by a Bench of three learned Judges. Accordingly,
D we request the learned Chief Justice to place this matter before a
Bench of three learned Judges."
As noticed earlier, the dispute started in the year 1979 between the
Police Authorities - the appellants herein and the respondents' organisation
and the matter was pending before one forum or th~ other for all these years
E and has now been placed before this Bench for final hearing and for resolution
of the long standing dispute between the parties.
We heard the arguments of Mr. Tapas Ray, learned senior counsel for
the appellants and Mr. T.R. Andhyarujina, learned senior counsel for the
---
F respondents.
Learned senior counsel appearing for the respective parties drew our ........
attention to the pleadings, documents, exhibits marked, the judgments rendered
by the High Court and of this Court on earlier occasions. Both sides have
also cited number of judgments in support of their respective contentions.
Mr. Tapas Ray, learned senior counsel appearing for the appellants,
submitted that - ·
(a) Tandava dance is not a religious rite or practice essential to the
tenets of religious faith of Ananda Margis and that taking out
religious processions with Tandava dance is not an essential
H
COMMR. OF POLICEv. A.J. AVADHUTA [DR. AR. LAKSHMANAN, J.] 1039
religious rite; , A
(b) Ananda Margis have no fundamental right within the meaning of
Articles 25 and 26 of the Constitution of India to perform Tandava
dance in public streets or public places on their mere assertions
that their Guru recently prescribed Tandava dance as part of their
religious rite; Bl
(c) The findings of the Calcutta High Court to the effect that Tandava
dance is a part of religious order of that particular community
and that the Police Authorities should allow the Ananda Margis
to perform the Tandava dance in public procession on the occasion
of their principal religious functions mentioned in the writ petitions c
are hit by the principle of res judicata in view of the negative
decision of this Court on identical issues in Acharya
Jagdishwaranand Avadhuta etc. 's case (supra);
(d) The subsequent order dated 01.12.1987 of this Court in Writ
Petition (Civil) Nos. 1317-18 of 1987 to the effect that the case I
made out in the writ petition filed in this Court should be
appropriately examined by the High Court keeping in view what
had been said by this Court in Acharya Jagdishwaranand Avadhuta
etc. 's case (supra) has not enabled the High Court to reopen the
issues already conclusively decided by this Court in the above
case; I
(e) In view of the fact that Ananda Margis is not an institutionalised
religion by itself and that they are a religious denomination within
the Hindu religion which is the religion they hold, the Ananda
Margis have no fundamental right within the meaning of Article
25 or Article 26 to perform Tandava dance in pubic streets and I
public places as per the mandate of their preceptor Ananda Murtiji
in absence of any prescription to that effect in the "Shaivite"
order within the Hindu religion;
(f) Whether the 'Guru' of Ananda Margis, Ananda Murtiji enjoys
complete autonomy under Article 26(b) of the Constitution of c
India in the matter of deciding as to what rites and ceremonies
are essential for his followers and whether Court is powerless to
- determine if such particular rite or observance is an· essential
tenet of the religion the followers of Ananda Margi hold.
(g) The respondents also cannot be permitted to carry trident, daggers I-
1040 SUPREME COURT REPORTS (2004] 2 S.C.R.
A or knife and/or live snakes in public procession or otherwise in
view of the fact that the same is bound to disturb public peace
and tranquillity and also such permission cannot be given as
because there would be possibility of breach of public order and
it might affect public health and morality. Further carrying of
human skulls and indulging in dance by lifting the leg to the
B chest level with weapons like tridents, daggers and/or knives and/
or live snakes in crowded public roads of Calcutta and its suburbs
or anywhere are repulsive to public taste and morality and the
unusual dancing pose would also cause fear in the mind of people
specially children thereby provoking public annoyance.
c Mr. T.R. Andhyarujina, learned senior counsel, made elaborate
submissions in support of the respondents' case and cited many decisions.
He submitted that the issue raised in the present appeal had been raised
by way of an application under Article 32 of the Constitution of India before
D this Court and this Court having directed the High Court to dispose of the
matter keeping in view the earlier judgments of this Court, the matter is at
large.
The action of the appellants in refusing the Ananda Margis the right to
perfonn the Tandava dance was violative of Articles 15, 19, 25 and 26 of the
E Constitution of India.
In the present case, what constitutes an essential part of a religion is
primarily to be ascertained with reference to the doctrine of that religion
---
itself and the Court cannot say that a belief or practice is not part of religion.
In support of this contention, he relied on the following judgments:-
F
I. The Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954] SCR
1005 at 1028.
2. Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay,
G [1962] Supp. 2 SCR 496 at 531-532.
3. Seshammal and Ors. etc. etc. v. State of Tamil Nadu, [1972] 2
sec 11.
4. Ratilal Pannachand Gandhi v. The State of Bombay and Ors.,
[1954] SCR 1055.
H
COMMR. OF POLICE v. A..I. AVADHUTA [DR. AR. LAKSHMANAN, .1.J ] 041
5. N. Adithayan v. Travancore Devaswom Board and Ors., [2002] A
8 sec 106.
6. The Durga Committee, Ajmer and Anr. v. Syed Hussain Ali and
Ors., [1962] 1 SCR 383 at 412. In the present case, Anand Murtiji
had prescribed a procession on six days with Tandava dance in
the Carya Carya in the fourth edition 1986. This precept is binding B
- on the Ananda Margis which has not been disputed by the
Commissioner of Police that these precepts are mandatory for the
Ananda Margis. [As could be seen from Volume-II page 84 para
8 of the paper book].
It is significant that this Court in its order of 01.12.1987 did not dismiss C
the fresh writ petition filed after its decision in Acharya Jagdishwaranand
Avadhuta etc. 's case (supra). When the precepts were recorded in the Carya
Carya and made part of the new petition, this Court ordered that this should
be investigated by a fresh writ petition in the High Court which was done by
the Division Bench of the High Court now and held that the precept was D
established as part of Ananda Margis religious belief.
It is pertinent to mention that carrying a small knife not exceeding 3"
or 4" in size and a skull as symbolic items for the purpose of performing
religious rites is not prohibited by any law. Besides, it must be emphasised
that a knife with a blade shorter than 10.16 cm in length is not an "arm" E
--- under Section 2(c) of the Arms Act. Learned senior counsel cited AIR ( 1990)
Calcutta 336 at 352 and Acharya Jagdishwaranand Avadhuta etc. 's case
(supra) which also notes that these are only 'symbolic' items.
There can be no question of any 'public order' being violated by the
procession of Ananda Margis involving in the Tandava dance. The concept F
of 'public order' which is a permissible restriction under Article 25(1) needs
to be distinguished from the connotation 'law and order'. As stated by this
Court in Dr. Ram Manohar Lohia v. State of Bihar and Ors., [1966] 1 SCR
709 at 745 that every breach of peace does not lead to public disorder.
Learned senior counsel for the respondents relied on the decision of the G
Constitution Bench in Himat Lal K. Shah v. Commissioner of Police,
Ahmedabad and Anr., [1973] 2 SCR 266 for the proposition that the right to
carry out religious processions in public streets.
It has been stated by the Commissioner of Police that if Ananda Margis
do not carry a knife, trident or skull but only perform the Tandava dance in H
1042 SUPREME COURT REPORTS [2004] 2 S.C.R.
A public, there would be no objection. This is to ignore the fact that feature of
the Tandava dance is the carrying of a knife, trident and skull since time
immemorial. This has also been noted by the Division Bench of the Calcutta
High Court in Commissioner of Police v. Acharya Jagdishwaranad, AIR
(1991) Calcutta 263 at 270.
B Concluding his argument, learned senior counsel submitted that the
respondents are willing to abide by any reasonable regulation in the interest ----..,
of public order· imposed by the Commissioner of Police in the conduct of
their procession provided that the essential practice of Tandava dance as
aforesaid is permitted.
c The first question which needs to be decided goes to the very root of
the High Court's jurisdiction in deciding the issue after the permission was
given to the respondents to approach the High Court. It is clear from the
language used by this Court in disposing of the petition under Article 32 of
the Co11stitution of India that this Court itself was persuaded with the earlier
D judgment did not finally conclude the matter. Th~at is why, this Court directed
the 1espondents herein to go before the High Court and directed the High
Co~rt to reconsider the matter. As rightly pointed out by learned senior
counsel for the respondents, it is significant to note that this Court in its order
dated 01.12.1987 did not dismiss the fresh writ petition filed after its decision
in Acharya Jagdishwaranand Avadhuta etc. 's case (supra) when the precepts
E were recorded in the Carya Carya and made part of the new petition under
Article 32 of the Constitution of India, this Court ordered that this should be
investigated by the High Court in a fresh writ petition filed by the respondents,
which was done by the High Court and which on reconsideration of the entire
gamut of litigation and the records and of the arguments of the counsel
F appearing on either side held that the precept was established as part of
Ananda Margis religious belief. Therefore, the suhmission made by learned
senior counsel for the appellants that the earlier judgment of this Court is
--.
final and there was no scope for the same issue to be reagitated or redetermined
by the High Court has no force. Since the matter is at large, we are of the
opinion the High Court is right in considering the entire matter afresh and
G determining the same. The High Court was competent to consider the question
whether the Ananda Margis can claim the benefit of Article 25( 1) of the
Constitution of India. Since, in our view, the said question is still open for
H
reconsideration. This apart, this Court in arriving at its finding that the Taridava
dance was not an essential part of Ananda Margis religion had taken into
consideration the fact that there was no document to show that the Tandava
-'
COMMR. OF POLICEv. A.J. AVADHUTA [DR. AR. LAKSHMANAN, .I.] 1043
- dance was to be performed in public. As rightly pointed out by the High
Court, there has been a factual change in the situation since the earlier
A
judgment. The High Court, therefore, is right in holding that. it has the
jurisdiction to entertain the present writ proceedings.
This Court, in its earlier judgment, took note of the fact that the practice
was a recent one. No finding, however, was arrived at by this Court that by B
reason of the recentness of the practice, the same could not form part of
religion or be a matter of religion. This Court, finally rested its finding on the
fact that the Ananda Margis had not been able to show from any of their
religious literature that the Tandava dance was to be performed in public. In
fact, this Court has also recorded that the counsel for the Ananda Margis had C
been asked by the Court to produce any literature in this regard but this could
not be done.
As far as the recentness of the practice is concerned, it has been submitted
by Mr. Andhyarujina that the Tandava dance has been closely associated
with Hinduism from time immemorial and in support of this'. argument he D
relied upon several authorities and that the Hindus in general have always
believed in dance as a form of worship vide "Nataraja in Art, Thought and
Literature" by C. Sivaramamurti. He would further submit that Ananda Murtiji
was considered by the Ananda. Margis as their religious preceptor or guru
and any direction given by him was a mandate which could not be disobeyed.
Therefore, the rites and rituals which would be prescribed by Ananda Murtiji E
---- would form an integral part of their religion as Ananda Murtiji was alive till
recently, necessarily such directives could continue to be given until his
death.
I am of the opinion that there is merit and substance in the contention F
of learned senior counsel. Although the specific introduction of Tandava
dance in public procession may have been recent, this does not detract from
the fact that the Tandava dance is part of the religion of the Ananda Margis.
In any religion, practices may be introduced according to the decisions of the
spiritual Head. If these practices are accepted by the followers of such spiritual
Head as a method of achieving their spiritual upliftment, the fact that such G
practice was recently introduced cannot make it anytheless a matter of religion.
Countering the argument, learned senior counsel for the appellants,
·submitted that the concept of Tandava dance was not a part of religion but
a secular activity and relied upon the decision of this Court in the case of
Durga Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors., reported in H
'
1044 SUPREME COURT REPORTS [2004] 2 S.C.R.
A (supra). The particular passage relied on by learned counsel for the appellant
is as follows:
"In order that the practices in question should be treated as a part
of religion they must be regarded by the said religion as its essential
and integral part; otherwise even surely secular practices which
B are not an essential or an integral part of religion are apt to be
clothed with a religions form and may make a claim for being
treated as religions practices within the meaning of Art. 26.
Similarly even practices though religions may have sprung from
merely superstitious beliefs and may in that sense be extraneous
and unessential accretions to religion itself. Unless such practices
c are found to constitute an essential and integral part of a religion
their claim for the protection under Art.2p may have to be carefully
scrutinised, in other words, the protectfon must be confined to
such religious practices as· are an essential and integral part of it
and no other."
D
This observation of this Court, in our view, runs counter to the
observation of Mukherjee, J. in The Commissioner, Hindu Religious
Endowment, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
(supra). In this context, it is useful to reproduce a passage from the above
judgment which explains the definition of religion in paragraphs 14 and 19
E of the judgment which are -
"We now come to Art. 25 which, as its language indicates, secures
to every person, subject to public order, health and morality, a
freedom not only to entertain such religious belief, as may be
approved of by his judgment and conscience, but also to exhibit
F his belief in such outward acts as he thinks proper and to propagate
or disseminate his ideas for the edification of others ....
... .If the tenets of any religious sect of the Hindus prescribe that
offerings of food should be given to the idol at particular hours
.of the day, that periodical ceremonies should be performed in a
o· certain way at certain periods of the year or that there should be
daily recital of sacred texts or oblations to the sacred fire all these ,C
would be regarded as parts of religion ... "
H
In a subsequent decision, namely, His Holiness Srimad Perarulala
Ethir.aja Ramanuja Jeeyar Swami etc. v. The State of Tamil Nadu AIR, ( 1972)
SC 1586, this Court has held that -
-
,,
COMMR. OF POLICl:: v. A.J. AVADHUTA [DR. AR. LAKSHMANAN, J.] 1045
--- "Worshippers lay great store by the rituals and whatever other
people, not of the faith may think about these rituals and
A
ceremonies, they are a part of the Hindu Religious faith and
cannot be dismissed as either irrational or superstitious."
Mr. Tapas Ray again submitted that the. directives regarding the
performance of Tandava dance was contained in Carya Carya under the B
heading "Social functions and festivals" and, therefore, the performance of
Tandava dance was a secular activity. We are unable to accept this contention. ,
We have already referred to the festivals at large. The Tandava dance has to
be performed which are religious in nature. It is stated in Chapter 15 of the
Carya Carya that our social-cum-spiritual functions will be considered part of C
our spiritu,al life. Admittedly, the original Tandava dance of Siva forms part
of the Hindu religion which is said to represent the threefold processes of
creation, preservation and destruction. The rhythm, postures, ornaments and
the weapons used in the dance are said to be symbols of religious significance
vide chapter entitled "The significance of Sivas dance from "Nataraja in
"Art, Thought and Literature" by S. Sivarama murthi. It is to be noticed that D
since 1986 Ananda Murtiji has specifically directed the performance of the
Tandava dance in public procession on special occasions. This directive is
contained in the revised version of the Carya Carya. It was placed before us
at the time of hearing. In fact, this writing was not produced before this Court
during the hearing of the earlier writ proceedings and that this Court had no E
occasion to consider the same. In our view, the performance of Tandava
dance in public procession forms part of the Ananda Margis religion and is
also a matter of religion within the meaning of those articles and that the
Ananda Margis cannot be deprived of their right to practice their religion in
the manner prescribed by their religious preceptor, except on the grounds of
public order, morality and health. It is not the case of the appellants that the F
permission for the performance of Tandava dance in public procession has
been forbidden on the ground of health. The permission has been refused on
the ground of public order and morality. However, in the orders by which the
permission had been refused, the Police Authorities have refused permission
in terms of the order of this Court. This Court had never directed the said
authorities not to accede to the performance of the Tandava dance in public G
procession. It was, therefore, wrong for the State Authorities to refuse
permission purportedly in terms of this Court's orders. A close scrutiny of
-- the order refusing permission do not contain any reference to public order or
morality. However, the appellants, at the time of hearing of this appeal, tried
to improve their case by affidavits which cannot at all be permitted. The H
1046 SUPREME COURT REPORTS [2004] 2 S.C.R.
A reason justifying refusal of permission should have appeared in the order
refusing permission itself. The only reason given was this Court's order.
-
These reasons cannot now be modified or supplemented by way of an affidavit
in the proceedings as held by this Court.in Mohinder Singh Gill v. The Chief
Election Commissioner, AIR (1978) SC 851.
B Ananda Marga had already been declared as a religious denomination
by this Court vide judgment dated 20.10.1983 as reported in Acharya _,
Jagdishwaranand Avadhuta etc. 's case (supra) at para 9 wherein it has been
observed as under:
" .... Anand a Marga appears to satisfy all the three conditions,
c viz., it is a collection of individuals who have a system of beliefs
which they regard as conducive to their spiritual well being; they
have a common organisation and the collection of these individuals
has a distinctive name, Ananda Marga, therefore, can b.e
appropriately treated as a religious denomination within the Hindu
D religion ... "
This declaration was made by this Court after perusal of all rival
contentions by both the parties. In that case also, the present appellants had
made various averments about the alleged misbehaviour of Ananda Margis
and this Court placed no reliance on the said allegations. The contention that
E the word 'religion' under Article 25(1) of the Constitution of India does not
include sect of religion of Ananda Marga being declared as religious
denomination does not qualify for the same protection as religion in our view
is not tenable. The learned Judges of the Calcutta High Court in their judgment
impugned in this appeal has categorically dealt with the question following
the decision exactly on the same point in the case of Shirur Mutt (supra) and
F the National Anthem case reported in AIR (1987) SC 748 and Sri
Venkataramana Devaru and Ors. v. State of Mysore and Ors., AIR (1958)
SC 255 held that a religious denomination or organisation enjoys complete
autonomy in the matter of deciding as to what rights and ceremonies are
essential according to the tenets of the religion they hold and outside authority
G has no jurisdiction to interfere with their decision in such matters.
It was argued on behalf of the respondents that the Ananda Marga
which has been declared as a religion by this Court has been discriminated
and singled out by the West Bengal Government for its ideological differences
as its philosophy is based on spirituality. Several instances were pointed out
H by the respondents. Particulars were also furnished by the respondents in
COMMR. OF POLICE v. A.J. AVADHUTA [DR. AR. LAKSHMANAN, J.] l 04 7
their writ petition in this regard. According to the respondents, processions A
of various hues are taken out regularly in Calcutta and the celebration of
Muslim festival of Muharram is taken out with various deadly weapons as
well as Sikh celebrations with sword fighting display in public, the procession
of workers of Bharat Sevasram Sangha (a Social and not even a religious
organisation) are allowed to move on horseback and carrying swords through B
the streets. Besides these, the example of Solana and Gajana festivals in
Burdwan, Birbhum, Murshidabad, Nadia in West Bengal, wherein a public
dance with severe heads from corpses is displayed and the procession of
monks in Allahabad are examples of religious tolerance in our country which
has a wide variety of traditions and beliefs. The display of Tandava dance
which takes only a few minutes by a very limited number of persons to C
display the same compared to other religious festivals. The plea of congested
streets is an eye-wash in that the appellants allows other groups of other hue
to move in procession in Calcutta and deny the Ananda Margis due to prejudice
towards Ananda Marga and its philosophy. This contention was denied by
learned counsel for the appellants stating that if the respondents are allowed
to perform the dance on public roads while in procession which is offensive D
order morality are bound to create external situation endangering public life
and safety which goes or bound to go out of control of the administration.
Such a procession with burning torches, human skulls etc. if allowed will
only be at the cost of widespread public panic, disruption of traffic, both
vehicular and pedestrian and smooth movement of passers by and will give E
rise to the chances of rioting and other criminal offences. In our view, this
contention of the appellants has no merits. If one religious denomination is
allowed to carry its religious ·practice but another religious denomination is
restrained from carrying on religious practice and almost similar religious
practices, the same makes out a clear case of discrimination in violation of
the principles of Article 14 o·f the Constitution. It was submitted by learned F
senior counsel for the respondents that in the procession of the followers of
Ananda Margis, each one of them will not carry the skull and trident or
knives of the aforesaid size, but only 5 to 6 members in a procession of at
least 1,000 members would carry the skull and the trident and/or knives to
perform the Tandava Dance which will be of a very limited duration, may be G
of 1 or 2 minutes. Such performance is likely to be repeated at the interval
of say one mile and the said performance is not a continuous cme. Such
performance cannot by any stretch of imagination cause public annoyance or
disturbance of the public law and order situation and therefore, there is no
reason for the respondents to deny permission to the members of Ananda
Margis to perform such Tandava Dance in public inasmuch as the said dance H
1048 SUPREME COURT REPORTS [2004] 2 S.C.R.
A is one of the most fundamental aspects of the religious practice which the
Ananda Margis are bound to perform as per the directions of their Living
Guru.
According to Mr. Andhyarujina, a wrong impression is created about
the religious procession by the Ananda Margis. as if it consisted of a huge
B number of violent persons brandishing knives or tridents and displaying human
skull or tridents terrifying the public and disturbing periodically public order
in streets and that the facts are to the contrary. In regard to this submission,
he invited our attention to the conditions under which the procession with
Tandava dance is held by Ananda Margis as under:-
c "1. 6 times a year on days of festivals and social functions
-=
2. approximately 1000 members in procession
3. 5 or 6 members carry skulls and trident and/or knives to perform
Tandava dance, which is of 1 or 2 minutes duration. This will be
repeated at intervals of one mile and is not of continuous duration;
D
4. Knife/trident is only of 3" to 4"
5. . The skull is held in the left hand and knife/trident (sometimes a
torch) is held in the right
6. Each of the items, tandava dance, trident/knife and skull has a
E deep spiritual significance.
7. The organizers of the procession have given undertaking to the
Commissioner of Police to maintain peace and ·discipline when
------
conducting procession and the procession will be taken only on
a specified route or roads."
F
According to him, Tandava Dance in procession is the mandate of
Ananda Margis. He invited our attention to para 14 of the judgment of this
Court in Acharya Jagdishwaranand Avadhuta etc. 's case (supra) in which
this Court held that there is no justification in any writings of Shri Ananda
Margis that Tandava dance must be performed in public. On this finding, this
G Court held that Tandava dance was not proved to be an essential religious rite
to be performed by every Ananda Margi in procession.
The tenets of the Ananda Margi are both oral and written as in the case
~
of many religions. The fact that there were no writings shown to· the Court 'I
H that Tandava dance is to be performed in public, did not negative the existence
''
COMMR. OFPOLICEv. A.J. AVADHUTA [DR. AR. LAKSHMANAN,JJ 1049
- of such precepts by the Anand Murthiji. As in the case of many religious any
of the Anand Murthiji's precepts ill'e a matter of oral prescriptions. However,
A
in the 1986 edition of Carya Carya specific mention was made by Anand
Murthiji of the requirement of Tandava dance in procession on special
functions and festivals.
These written mandatory directions of Anand Murtiji were specifically B
pleaded by the Petitioner at page 9- l 0 para 9 and l 0 of the Writ Petition.
Their existence or genuineness were not denied in the reply. On the contrary,
it was admitted that "the directive may be mandatory and binding on the
followers of Ananda Margis but. it does not bind the respondents.
....... The Court rightly observed that the fact that the practice is recently
c
prescribed by Ananda Murtiji is not a reason for saying does not part of the
. religious practices ana beliefs of the denomination.
I shall now consider whether Ananda Margis have the fundamental
right under Articles 25 and 26 of the Constitution of India.
D
The Anand Margi are a religious denomination and as such are entitled
to the protection under Article~ 25 and 26(b) of the Constitution for their
beliefs and practices including their practice of Tandava dance in a procession
or public place. This is because, as held by this Court in several cases.
E
"Religious practices or performance of acts in pursuance of religious
beliefs are as much a part of religious as faith or belief in religious doctrine.
No outside authority has any right to say that they are not essential part of
religion and it is not open to the secular authority of the State to restrict or
prohibit them in any manner they like ..... " Ratilal Pannachand Gandhi v.
State ofBombay, (supra) citing with approval Daver, J. in Jamshedji Soonabai, F
AIR 33 Born. 122, Commnr. HRE, Madras v. Lakshmandra (1954] SCR
1006 at 1021-1022, 1025, Sardar Syedna v. $tate of Bombay, (1962] Suppl.
2 SCR 496 at 531-532. In Venkatarama Devaru 's case (supra), this Court has
held that the right under Article 26(b) of a denomination to manage its own
affairs in matters of religion includes even practices which are regarded as
G
part of religion. The exercise of the freedom to act and practice in pursuance
of religious beliefs is as much important as the freedom of believing in a
religion. In fact to persons believing in religious faith, there are some forms
- of practicing the religion by outward actions which are as much part of
religion is the faith itself. The freedom to act and practice can be subject to
regulations. In our Constitution subject to public order health and morality H
1050 SUPREME COURT REPORTS (2004] 2 S.C.R.
A and to other provisions in Part III of the Constitution. However, in every case
the power of regulation must be so exercised with the consciousness that the
subject of regulation is a fundamental right of religion, and as not to unduly
·infringe the protection given by the Constitution. Further in the exercise of
the power to regulate, the authorities cannot sit in judgment over the professed
B views of the adherents of the religion and to determine whether the practice
is warranted by the religion or not. That is not their function (See Jesse
Cantwell v. State of Connecticut, [1939] 84 L.Ed. 1213-1218, United States
v. Ballard, [1943] 88 L.Ed. 1148, 1153, 1154).
I shall now consider the right of the Ananda Margis to religious
C procession. In Parthasaradi Ayyangar and Ors. v. Chinakrishna Ayyangar,
. ILR 5 Madras 304 Turner CJ. said,
"In India, person of whatever sect are entitled to conduct religious
procession through public streets so long as they do not interfere with the
ordinary use of such streets by the public and subject to such directions as
D the Magistrates may lawfully give to prevent obstruction of thorough fare or
breaches of public peace."
/
"The power to suspend is extraordinary and the Magistrate should resort
to it only when he is satisfied that other powers are insufficient. This authority -
I
of the Magistrate should be exercised in defence of rights rather than in their
E suspension."
These observations were quoted with approval by this Court in Ghulam
Abbas v. State of UP., [1982] I SCR 1077 at 1130-1133. It was observed
that the authorities should not in face of such religion rights prohibit religious
procession on the "facile ground of public peace and tranquillity" but adopt
F a positive approach to protect fundamental rights under Articles 25 and 26
of the Constitution.
Moreover "public order" has a larger connotation than "law and order".
Contravention of law to effect public order must affect the community or the
G public at large. A mere disturbance of Jaw and order leading to disorder is
not one which affects "public order". (See R.M Lohia v. State of Bihar,
(supra)).
"
H
Similar processions by other communities even with use of swords e.g.
Sikhs, Muslims and Bharat Sevashram Sanghs have been permitted by the
Commissioner of Police. The Police Commissioner answers the charge of
-
COMMR. OFPOLICEv. A.J. AVADHUTA [DR. AR. LAKSHMANAN . .1.) 1051
discrimination by stating that "activities of Anand Margis cannot come within A·
the scope of religious functions or practices as compared to well established
practices festival of Muslims and Sikhs". It is not for the Police Commissioner
to give his disapproval to practiCe of a particular sect which are in his opinion
not well established. To allow any authority to judge the truth or falsity of
a religious belief or practice is to destroy the guarantee of religious freedom B
in the Constitution (see US v. Ballard, 88 L.Ed.1140).
At the time of hearing, a promise was made that the Ananda Margis are
willing to abide with any regulatory condition imposed by the Police
-
Authorities in their procession so long as their religious beliefs and practices
of Tandava Dance in a procession are not abrogated. C
Whilst our Constitution is neutral in religion, it at the same time, is
benign and sympathetic of all religious creeds however unacceptable they
may be in the eyes of the non-believers. Articles 25 and 26 embody a tolerance
to all religions. This Court has rightly said
D
"Our tradition teaches tolerance; Our philosophy preaches tolerance;
Our Constitution practices tolerance; Let us not dilute it: It is in that
spirit of tolerance that creeds like the Petitioner with their practices
must be accepted in our society".
This Court has explained in a number of decisions that what constitutes E
an essential part of a religion is primarily to be ascertained with reference to
the doctrine of that religion itself and the Court cannot say that a belief or
practice is not part of religion. This proposition was authoritatively laid down
by the Constitution Bench of this Court (Seven Judges) in Shirur Mutt's case
(supra) as extracted in paras (supra). This is the most essential part of the
· fundamental right of freedom of religion. This Court in subsequent cases F
have followed the proposition in Shirur Mutt's case (supra), Sardar Syedna
Tahe Saifuddin Saheb v. State of Bombay (Five Judges) (1962] Suppl. SCR
496 at 531-532 and in Seshanmma/ v. State of Tamil Nadu, [1972] 2 SCC 11
(five Judges) at page 21.
In the case of Ratilal Pannachand Gandhi v. State of Bombay, (supra), G
this Court emphasized that "No outside authority has any right to say that
these are not essential parts of religion and it is not open to a secular authority
of the State to restrict and prohibit them in any manner they like under the
guise of administering the trust estate." This Court quoted with approval
Jamshedji v. Soonabai (supra) where the Bombay High Court held, "if this H
1052 SUPREME COURT REPORTS [2004] 2 S.C.R.
A is the belief of the community ...... a secular judge is bound to accept that
belief - it is not for him to sit in judgment on that belief, he has no right to
interfere with the c()nscience of a donor who makes a gift in favour of what
·he believes to be the advancement of his religion and the welfare of· his
community or mankind."
B.
-
As late as 2002, this Court has reiterated this in N. Adithayan v.
Tranvancore Devaswom Board, [2002] 8 SCC 106 at 123. This Court observed
that "as to what really constitutes an essential part of religion or religious
practice.has to be decided by the Courts with reference to the doctrine of a
particular religion or practices regarded as parts of religion."
c The obiter of Gajendragadkar, J. in Durga Committee, Ajmer v. Syed
Hussain Ali (supra) to the effect that the Court may have carefully scrutinized
the practices to find out whether they constitute an essential _or integral part
of religion is not in line with 'the above decisions including that of seven
Judges Bench in the case of Shirur Muti (supra).
D
Seervai in Constitutional Law of India (4th Edition), Volume-II at page
1268 has criticized this as obiter as inconsistent with earlier decisions of this
Court cited above.
Subject to consideration of public order, health and morality, it is not
E open for anybody to question the tenets and practices of religion, however,
irrational they may appear to an outsider.
It is brought to our notice that the following observation in Acharya
Jagdishwaranand Avadhuta etc. 's case (supra) is not correct in law :-
F "Mr. Tarkunde has claimed protection of Article 25 of the Constitution
but in view of our finding that Anandamarga is not a separate religion,
application of Article 25 is not attracted".
As rightly stated by this Court in Bijoe Emmanuel's, case [1986]
6 SCC 615 at 631. This sentence appears to have crept into the
G judgment by some slip.
Article 25( 1) states that all persons are entitled to freedom of
religion. Hence every member of a religious denomination is entitled
to the fundamental right of freedom of religion under Article 25. It
necessarily follows that every sect or denomination is entitled to
H freedom of religion under Article 25. It is undisputed that under
COMMR. OF POLICE v. A..I. AVADHUTA [DR. AR. LAKSHMANAN, .I.] l 053
Article 26(b) a denomination is entitled to manage its own affairs in A
matters of religion.
The above observation in Jagdishwaranand's case is also contrary to
the interpretation of Article 25(1) given by this Court in the Constitution
Bench of 7 Judges in Shirur Mutt case where the Court observes that
"institutions as such cannot practice or propagalc re!tgion; it can be done B
only by individual persons and whether these persons propagate their personal
views or the tenets for which the institution stands is really immaterial for the
purpose of Article 25".
In this context, I can also usefully refer to the decision of this Court in
Ratilal Panachand Gandhi and Ors. v. State of Bombay and Ors., (supra). C
I am, therefore, of the opinion that the observation of the learned Judges
in the referring order dated 17.01.2002 are not correct.
I have given my thoughtful consideration to the important questions of D
law posed for our consideration.
Article 25( 1) guarantees to every person freedom of conscience and the
right freely to profess, practice and propagate any religion. It may be noted
that this right is not confined to citizens alone, but covers all persons residing
in India. But the right to freedom of religion guaranteed by this Article is E
subject to restrictions which may be imposed by the state on the grounds of:
l. Public order, morality and health;
2. Other provisions of Part III of the constitution;
3. Regulating non religious activity associated with religious practice; F
4. Social welfare and reform and
5. Throwing open Hindu religious institutions of public character to
all classes of Hindus.
The full concept and scope of religious freedom is that there are no G
restraints upon the free exercise of religion according to the dictates of one's
conscience or upon the right freely to profess, practice and propagate religion
save those imposed under the police power of the State and the other provisions
of Part II of the Constitution. This means the right to worship God according
to the dictates of one's conscience. Man's relation to his God is made no
concern for the State. Freedom of conscience and religious belief cannot, H
1054 SUPREME COURT REPORTS [2004] 2 S.C.R.
A however, be, set up to avoid those duties which every citizen owes to the
'·
nation; e.g. to receive military training, to take an oath expressing willingness
to perform military service and so on.
Though the freedom of conscience and religious belief are absolute, the
right to act in exercise of a man's freedom of conscience and freedom of
B religion cannot override public interest and morals of the society and in that
view it is competent for the state to suppress such religious activity which are \_
prejudicial to public interest. That apart, any activity in furtherance of religious
belief must be subordinate to the criminal laws of the country. It must be
C
remembered crime will not become less odious because sanctioned by what
a particular sect may designate as religious. Thus polygamy or bigamy may
be prohibited or made a ground of disqualification for the exercise of political
.....
rights, notwithstanding the fact that is in accordance with the creed of a
religious body,
The liberty of the individual to do as he pleases, even in innocent
D matters, must yield to the common good. In other words, the police power
of the State is founded on the theory that when there is conflict between the
rights of individual and the interest of the society, the interest of the society
must prevail. In an organized society there cannot be any individual right
which is injurious to the community as a whole. At the same time, the police
E power is not absolute and must not be arbitrary or oppressive. In other wore.ls,
the police power must be exercised for preservation of the community from
injury. What our Constitution attempts to do is to strike a balance between
individual liberty and social control. There are two limbs to religions freedom
contained in Article 25. While one limb guarantees the right the other limb
incorporates restrictions on the exercise of the right so that they may not
F conflict with public welfare or morality.
Jehova Witnesses and Ananda Margis
The .principle of secularism enshrined in the Constitution touched its
high watermark in the Jehovah's witnesses case, wherein this Court held that
G children of the Jehovah's witnesses faith need not stand up to sing the National
Anthem at school· assemblies. According to the Court there is no provision
of law which obliges anyone to sing the National Anthem, nor is it disrespectful
to the National Anthem if a person who stands up respectfully when the
National anthem is sung does not join the singing. It is true that the constitution
enjoins a duty on every citizen to respect the National Flag and National
H Anthem. However, according to the Court, proper respect is shown to the
COMMR. OF POLICE v. A.J. AVADHUTA [DR. AR. LAKSHMANAN. J.] I 055
- National Anthem by standing up when the National Anthem is sung and it
will not be right to say that disrespect is shown by not joining in the singing.
A
Therefore, the expulsion of the children from the school for the reason they
did not join the singing of National Anthem, though they do stand up
respectfully, when the Anthem is sung would be violative of Article 19(1)
and Article 25(1 ), especially when it was sought to be done in pursuance of B
two circulars issued by the Director of Public Instruction having no statutory
force. In the case of P.M.A. Metropolitan and Ors. etc. etc. v. Moran Mar
Marthoma and Anr. etc. etc., AIR (1995) SC 2001 (ex-communication case),
a sharply divided Court upheld the right of the leaders of faith to ex-
- communicate 'fallen' believers for religious reasons-no doubt leaving it to
the Courts to determine whether an ex-communicatory reason was religious
or not. The principle of ex-communication is that the collective right will
prevail over individual right. However, in 1995, this Court recognized the
C
power of ex-communication as a measure of discipline. In the case of Mohd.
Hanif Quareshi and Ors. v. The State of Bihar, [1959] SCR 629, Cow Slaughter
case] this Court had struck a balance between the fundamental rights of
butchers to occupation and slaughtering of cows an activity claimed to be D
part of the Islamic faith. While prohibiting indiscriminate slaughter of cows
the Court did two things.
I. muslim sentiments were respected and butchers retained a large
part of their trade.
E
- 2. by rejecting their claim that cow slaughter was an "essential
practice of Islam" relying on its own interpretation of Koran, the
Hindus were partially appeased.
Here, the Court has assumed the role of the theologian after making a
roving enquiry. While the decision is criticized on the ground that, once this F
- door is opened, there is no limit to which the Court cannot go, the answer
is that the power of judicial review as a basic structure is vested with the
Court and if some one has to be trusted, let it be the Courts even in matters
of faith. This Court, as stated earlier, considered this question whether
performance of Tandava dance is a religious rite or practice essential to the G
tenets of the religious faith of the Ananda Margis. The Court while upholding
Ananda Marga satisfies all the three conditions envisaged by Article 26 of
the Constitution of India and as such a religious denomination negatived their
claims to perform Tandava Dance in public (I. It is a collection of individuals
who have a system of beliefs which they regards as conducive to their spiritual
well-being; 2. they have a common organization, and 3 the collection of H
1056 SUPREME COURT REPORTS [2004] 2 S.C.R.
A these individuals has distinctive name). The specific case of the petitioners
is that Shri Ananda Murti introduced Tandava as a part of religious rites of
Anand Margis in 1966. What is Tandava Dance? It lasts for a few minutes,
where two or three persons dance by lifting one leg to the level of the chest,
bringing it down and lifting the other. When the Ananda Margis greet their
B spiritual preceptor, they perform a brief welcome dance of Tandava using
skull and knife for 2/3 mts. According to them, Tandava is a custom among
its sect members and it is a customary performance and its origin is over
thousands of years old. Repelling the contention the Court held even conceding
that Tandava dance has been prescribed as a religious rite for the followers
of Ananda Marga, it does not follow as a necessary corollary that Tandava
C Dance to be performed in the public is a matter of religious rite. The Court
went on to observe that there is nothing that Tandava dance must be performed
in public. In the result, this Court rejected the claim of Ananda Margis to
perform Tandava Dance in public streets.
It would be pertinent to mention that the Sikh Community carry
D "Kirpans" as a symbol of their religious practice and the Gurkhas the "Kukris"
or "Dagger". So also, the Hindus are permitted to carry the idol of "Ganesa"
in procession before immersion in the sea during Vinayaka Chaturti
Celebrations. Persons professing Islamic Faith are allowed to take out
procession during "Moharrum" Festival and persons participating in such
E processions beat their chest with hands and chains and inflict injuries on
them and the same has been permitted as a religious practice of that
community.
Each deity presides· over a certain function, has a certain consort, uses
--
a particular vehicle, giving them a concrete aspect that appeals to less spiritually
F sophisticated lay people. All these insignia have a deep philosophical
symbolism. What might' interest us presently is that all these vehicles are
mostly drawn from the world of animals, birds, and even reptiles. For example,
Brahma has a swan, Vishnu has a garuda, a type of eagle, Siva rides a bull,
Ganesa a mouse, Subrahmanya a peacock, and .so on. The idea is only to
emphasize the kinship with animals. Trees have the divinity Vanadevata.
G War is presided over by the Goddess Chamundi riding a lion. Sound has a
divinity, the Nadabrahmam. The Goddess Saraswathi presides over music
and arts. Lakshmi sitting on a lotus deals with wealth. Parvathi, the consort
H
of Siva, rules the entire Nature. All these divinities serve to consecrate every ·•
aspect of daily life. The whole pantheon serves to emphasize the one ultimate
Reality.
--
COMMR. OF POLICEv. A.J. AVAOHUTA [DR. AR. LAKSHMANAN, J.) \057
Reading and reciting old scriptures, for instance, Ramayana or Quran A
or Bible or Gurur Granth Sahib is as much a part of religion as offering food
to deity by a Hindu or bathing the idol or dressing him and going to a temple,
mosque, church or gurudwara...
The authorities concerned can step in and take preventive measures in
the interest of maintenance of Law and Order if such religious process'ions B
disturb Law and Order. It has to be held that the right to carry Trishul, Conch
or Skull is an integral and essential part of religious practice and the same
is protected under Article 25 of the Constitution of India. However, the same
is subject to the right of the State to interfere with the said practice of
carrying Trishul, Conch or Skull if such procession creates Law and Order C
problems requiring intervention of concerned authorities who are entrusted
with the duty of maintaining Law and Order.
What is Religion
Religion is a social system in the name of God laying down the Code
of Conduct for the people in Society. Religion is a way of life in India and D
it is an unending discovery into unknown world. People living in Society
have to follow some sort of religion. It is a social Institution and Society
accepts religion in a form which it can easily practice. George Barnard Shaw
stated, "There is nothing that people do not believe if only it be presented to
them as Science and nothing they will not disbelieve if it is presented to them E
as Religion." Essentially, Religion is based on "Faith". Some critics say that
Religion interfered with Science and Faith. They say that religion led to the
growth of blind faith, magic, sorcery, human sacrifices etc. No doubt, history
of religion shows some indications in this direction but both Science and
Religion believe in faith. Faith in Religion influences the temperament and
attitude of the thinker. Ancient civilization viz., the Indus Valley Civilization F
- shows faith of people in Siva and Sakthi. The period of Indus Valley
Civilization was fundamental religion and was as old as at least Ehyptian and
Mesapetomiah Cultute. People worship Siva and the Trishul (Trident), the
emblem of Siva which was engraved on several seals. People also worshipped
stones, trees, animals and Fire. Besides, worship of stones, trees, animals etc. G
by the primitive religious tribes shows that animism viz., worship of trees,
stones, animals was practiced on the strong belief that they were abodes of
spirits, good or evil. Modern Hinduism is to some extent includes Indus
Valley Civilization Culture and religious faith. Lord Siva is worshipped in
the form ofLinga. Many symbols have been used in Hindu Literature. Different
kinds of symbols and images have different sanctity. Brading of chest, arms H
1058 SUPREME COURT REPORTS [2004] 2 S.C.R.
A and other parts of body represent to the weapons of symbols of Siva. Modem
Hinduism has adopted and assimilated various religious beliefs of primitive
tribes and people. The process of worship has undergone various changes
from time to time.
The expression of 'RELIGION ' has not been defined in the
B Constitution and it is incapable of specific and precise definition. Article 25
of the Constitution of India guarantees to every person, freedom of conscience
and right freely to profess, practice and propagate religion. No doubt, this
right is subject to public order related to health and morality and other
provisions relating to Fundamental Right. Religion includes worship, faith
C and extends to even rituals. Belief in religion is belief of practice a particular
faith, to preach ·and to profess it. Mode of worship is integral part of religion.
Forms and observances of religion may extend to matters of Food and Dress.
An act done in furtherance to religion is protected. A person believing in a
particular religion has to express his belief in such acts which he thinks
proper and to propagate his religion. It is settled law that protection under
·D Articles 25 and 26 of the Constitution of India extend guarantee for rituals
and rituals and observances, ceremonies and modes of worship which form
part and parcel of religion. Practice becomes part of religion only if such
practice is found to be essential and integral part. It is only those practices
which are integral part of religion that are protected. What Wf>Uld constitute
E an essential part of religion or religious practice is to be d~ermined with
reference to the Doctrine of a particular religion which includes practices
which are regarded by the Community as part and parcel of that religion.
Test has to be applied by Courts whether a particular religious practice is
regarded by the community practicing that particular practice is integral part
-
of the religion or not. It is also necessary to decide whether the particular
F practice is religious in character or not and whether the same can be regarded
as an integral or essential part of religion which has to be decided based on
evidence.
It is not uncommon to find that those delve deep into scriptures to
ascertain the character and status of a particular practice. It has been
G authoritatively laid down that Cow Sacrifice is not an obligatory over-act for
a Muslim to exhibit his religious belief. No Fundamental Right can be claimed
to insist on slaughter of a healthy cow on a Bakrid Day. Performance of
"Sharadha" and offering of "Pinda" to ancestors are held to be an integral
part of Hindu Religion and religious practice. Carrying "Trishul" or "Trident"
H and "skull" by a few in a procession to be taken out by a particular community
COMMR. OF POLICEv. A.J. AVADHUTA [DR. AR. LAKSHMANAN, J.] 1059
- following a particular religion is by itself an integral part of religion. When A
persons following a particular religion carry Trishul, Conch or Skull in a .
procession, they merely practice which is part of their religion which they
wanted to propagate by carrying symbols of their religions such as Trishul,
Conch etc. If the conscience of a particular community has treated a particular
practice as an integral or essential part of religion, the same is protected by B
Articles 25 and 26 of the Constitution of India.
Therefore, Anand Margis have right to take a procession in public
places after obtaining necessary permission from the concerned authorities
and they are also entitled to carry Trishul or Trident, Conch or Skull so long
- as such procession is peaceful and does not offend the religious sentiments C
of other people who equally enjoy fundamental right to exercise their religious
freedom. An Anand Margi is entitled to transmit or spread religion by taking
out procession in public places and also carry Trishul, Conch or Skull.
However, any religious right is subject to public order. The State has got
ample powers to regulate the secular activities associated with religious
practices. Religious activities are protected under Article 25 of the Constitution D
_ of India. No doubt, such religious freedom is subject to health and subject to
laws made for social welfare. Every person has got right to follow, practice
and propagate his religion.
The Commissioner has got power to regulate assemblies, meetings and
processions in public places, etc. It specifically provides that he is entitled to E
prescribe the routes by which ~nd the times at which such processions may
pass, in order to keep the public places and prevent obstructions on the
occasion of such assemblies, meetings and processions and in the
neighbourhood of places of worship during the time of public worship.
Hence, to preserve public peace and to avoid damages to public
F
properties and keeping this in mind the Anand Margis are permitted to go on
procession and perform Tandva dance with symbolic skull, Trishul, knife,
damroo, sword subject to the following terms and conditions:-
I. The Commissioner of police may prescribe the route;
G
2. REGULATION:
(i) The participants to the procession shall not carry wooden
bars, weapons, metal rods, weapons capable of inducing
violence.
H
1060 SUPREME COURT REPORTS [2004] 2 S.C.R.
A (ii) Loud speakers shall not be used. ---
(iii) Traffic regulations should be observed.
(iv) Traffic should not be obstructed.
(v) Normal activities of common man should not be disturbed.
B
(vi) Objectionable slogans and illegal slogans or provocative
slogans affecting others' sentiments shall not be expressed
or voiced.
c
(vii) Processionists shall proceed in five persons row and shall
keep one side of the road by keeping other side for transport. --
(viii) Crackers are prohibited
(ix) They should not spray colour powders
The instructions of police officers and other regulations as above should
D be followed."
For the foregoing reasons, I am of the opinion that the appeal filed by
the appellants has no merits and is, therefore, dismissed. In my opinion, it is
a fit case for awarding of exemplary costs to the respondents. Since the
E respondents were prevented from practising their religion and perform the
religious Tandava dance, they were compelled to come before this Court.
In this appeal, since the appellant is a Government, by taking a lenient
view, I order no costs.
F B.K.M. Appeal allowed.
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