Commissioner Of Police And Others v. Acharya Jagadishwarananda Avadhuta And Another, Supreme Court Of India, Judgment, Law, casemine.com

Precedent	Rule or Principle Cited For	Application by the Court
Acharya Jagdishwaranand Avadhuta v. Commr. of Police (1983) 4 SCC 522	Held that Tandava dance in public is not an essential Ananda Marga rite.	Majority reaffirmed and treated as binding; High Court held to have erred in departing from it.
Commr., H.R.E. v. Sri Lakshmindra Thirtha Swamiar (Shirur Mutt) AIR 1954 SC 282	Test for determining “essential practices” protected under Arts. 25-26.	Cited to explain that “core” practices are immutable; later additions cannot alter essentials.
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay AIR 1962 SC 853	Autonomy of a denomination in matters of religion.	Referenced while stating courts still decide what is essential.
Seshammal v. State of T.N. (1972) 2 SCC 11	Judicial role in scrutinising essential religious practices.	Relied upon for methodology of assessment.
N. Adithayan v. Travancore Devaswom Board (2002) 8 SCC 106	Courts’ findings on essentials cannot be revisited by later doctrinal changes.	Used as illustration why altered doctrines cannot defeat prior judgments.
Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615	Protection of religious conscience under Article 25; clarified an inadvertent sentence in 1983 Ananda Marga case.	Majority agreed that the earlier slip did not affect ratio; dissent relied on broader tolerance rationale.

S. Rajendra Babu, J. (for himself and G.P Mathur, J.)— This is the second round of litigation. In the first round of litigation, the question raised before this Court was whether performance of Tandava dance in public is an essential practice of the Ananda Margi order or not. This Court in Acharya Jagdishwaranand Avadhuta v. Commr. of Police (1983) 4 SCC 522 (first Ananda Margi case) held that Tandava dance in public is not an essential rite of the Ananda Margi faith. Subsequent to the first case, it appears that Ananda Murtiji — founder of that order prescribed the performance of 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 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 Petitions (Civil) Nos. 1317-18 of 1987. This Court disposed of it with the following observation:

“We are of the view that these cases should appropriately be examined by the High Court keeping in view what has been said by this Court in the judgment in Acharya Jagdishwaranand Avadhuta v. Commr. of Police (1983) 4 SCC 522. Petitioners are at liberty to go before the High Court.”

2. Firstly, a Single Judge and subsequently a Division Bench of the Calcutta High Court arrived at the conclusion that taking out Tandava dance in public carrying skull, trident, etc. is an essential part of the Ananda Margi faith and the Commissioner of Police could not impose conditions to it. This decision is now under challenge.

3. When this matter came up for consideration before this Court, a Bench of two learned Judges made an order on 13-11-1992 as follows:

“After hearing the parties for some time and having considered the decision of the three learned Judges of this Court in Acharya Jagdishwaranand Avadhuta v. Commr. of Police (1983) 4 SCC 522 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.”

4. On 4-12-2001 a Constitution Bench of this Court considered this matter and noticed: (i) that the referring Bench did not express any difficulty in following the earlier judgment, and (ii) that it did not set out any substantial question of law which required the decision of a Constitution Bench since that order merely stated that the matter should be heard and decided by a Constitution Bench. The Constitution Bench felt that in those circumstances there was no justification for hearing the appeal by the Constitution Bench and therefore placed the matter back before a two learned Judges for final disposal who in their turn made a reference to a Bench of three Judges.

5. The relevant question herein for consideration is whether the High Court is correct in its finding that Tandava dance is an essential and integral part of the Ananda Margi faith based on the revised edition of Carya Carya. A Bench consisting of three Judges of this Court in the first Ananda Margi case (1983) 4 SCC 522 arrived at a unanimous conclusion on facts that Tandava dance in public is not an essential and integral part of the Ananda Margi faith. In order to arrive at this conclusion this Court inter alia took the following four aspects into account:

1. Shri Prabhat Ranjan Sarkar, otherwise known as Shri Ananda Murti, founded a socio-spiritual organisation 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 yogic 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.

4. Ananda Marga is a religious denomination of the Shaivite order, which is a well-known segment of the Hindu religion.

6. After taking into account all the relevant facts, including the above, this Court held::

“Ananda Marga as a religious order is of recent origin and Tandava 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 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 the performance of Tandava dance by every follower of Ananda Marga. Even conceding that Tandava dance has been prescribed as a religious rite for every follower of the Ananda Marga it does not follow as a necessary corollary that Tandava dance to be performed in public is a matter of religious rite.”

(emphasis supplied)

7. By the above finding this Court was categorical in its judgment that Tandava dance in public is not an essential part of religious rites of the Ananda 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 the said dance is still more recent. The 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 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.”

(emphasis in original)

8. 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-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.

9. The protection guaranteed under Articles 25 and 26 of the Constitution 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 background, etc. of the given religion. (See generally the Constitution Bench decisions in Commr., H.R.E v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282, 1954 SCR 1005, Sardar Syedna Taher Saifuddin Saheb v. State Of Bombay AIR 1962 SC 853, 1962 Supp (2) SCR 496 and Seshammal v. State of T.N (1972) 2 SCC 11, AIR 1972 SC 1586 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 the matter for elucidation. Essential part of a religion means the core beliefs upon which 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 that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the 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. 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 which are protected by the Constitution. Nobody can say that an essential part or practice of one's religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the “core” of religion whereupon the belief is based and religion is founded upon. They could only be treated as mere embellishments to the non-essential (sic essential) part or practices.

10. Here in this case the Ananda Margi order was founded in 1955. Admittedly, Tandava dance was introduced as a practice in 1966. Even without the practice of Tandava dance (between 1955 to 1966) the Ananda Margi order was in existence. Therefore, Tandava dance is not the “core” upon which the Ananda Margi order is founded. Had Tandava dance been the core of Ananda Margi faith, then without it Ananda Margi faith could not have existed.

11. 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 an 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 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 the 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 appoint only a Brahmin as poojari. Is it open for those temple authorities to subsequently decide that 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 finding of a court. If subsequent alterations in doctrine could be allowed to create new essentials, the judicial process will then be reduced to 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 the High Court is liable to be set aside.

12. In the result, we respectfully adopt the finding of this Court in the first Ananda Margi case (1983) 4 SCC 522 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 the writ petition is dismissed.

13. Before parting with this matter, it is necessary for us to refer to the observations made by this Court in Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615, AIR 1987 SC 748, (1986) 3 SCR 518 because reference to a three-Judge Bench has arisen on account of these observations. In Bijoe Emmanuel case (1986) 3 SCC 615, AIR 1987 SC 748, (1986) 3 SCR 518 this Court adverted to the decision of this Court in the earlier round of litigation in first Ananda Margi case (1983) 4 SCC 522 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. 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 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 Article 25 is not attracted.’

This sentence appears to have crept into the judgment by some slip. It is not a sequitur 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 to perform Tandava dance in public streets pursuant to the right claimed by them under Article 25(1).”

14. We respectfully agree with what has been stated above in Bijoe Emmanuel case (1986) 3 SCC 615, AIR 1987 SC 748, (1986) 3 SCR 518 insofar as first Ananda Margi case (1983) 4 SCC 522 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 of the case.

15. The appeal is allowed accordingly.

Dr. Ar. Lakshmanan, J. (dissenting)— This appeal stems from the judgment and order dated 8-11-1990 passed by the Division Bench of the Calcutta High Court in FMAT No. 1451 of 1990 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 and discipline on such occasions.”

The Division Bench affirmed the judgment and order dated 7-5-1990 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 prescribed in this behalf subject to the restrictions under Articles 25 and 26 of the Constitution and the Police Authorities have no jurisdiction to impose ban on such a dance.”

17. This case has a long and chequered career. The facts are stated as under:

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

18. 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 lathi and a damroo and sword. Dancer may also use live snake in place of skull in daytime and fire mashals 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 represents life. The Ananda Margis are followers of the Shaivite order within the Hindu religion and Ananda Murtiji directed performance of Tandava dance as one of the prescriptions of religious rite to be followed by an Ananda Margi in private life and public places.

19. The respondents took out a procession with human skulls, daggers, trident, etc. on 10-8-1979. According to the police, the procession was taken out violating prohibitory ban in regard to carrying of those articles in processions in public streets. In those 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 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 firearms, explosives, 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 challenged by the General Secretary of the Ananda Marga in Writ Petition No. 903 of 1980 before the High Court of Calcutta. The Calcutta High Court, by order dated 23-9-1980, 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 29-3-1982 wherein the same restraints as mentioned in the earlier order were 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 in this Court being registered as Writ Petitions Nos. 6890 and 7204 of 1982.

20. 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 (1983) 4 SCC 522( and 532-33):

The claim of Ananda Marga as a separate religion was not acceptable in view of the clear assertion that it was not an 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. (Para 9)

The courts have the power to determine whether a particular rite or observance is regarded as essential by the tenets of a particular religion. (Para 12)

Ananda Marga as a religious order is of recent origin and Tandava 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 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 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 Tarkunde that performance of Tandava dance in a procession or at public places is an essential religious rite to be performed by every Ananda Margi. (Para 14)

The petitioners have no fundamental right within the meaning of Article 25 or 26 to perform Tandava dance in public streets and public places. (Para 15)

21. According to the appellants, no permission 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 7-5-1987, the respondents made an application to the Commissioner of Police, Calcutta seeking permission for taking out a procession. By order dated 25-5-1987, the permission was refused by the Commissioner of Police, Calcutta. Under Article 32 of the Constitution, Writ Petitions (Civil) Nos. 1317-18 of 1987 were filed by the respondents in this Court challenging the said order of the Police Authorities refusing permission 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 what has been said by this Court in the judgment in Acharya Jagdishwaranand Avadhuta v. Commr. of Police (1983) 4 SCC 522. Petitioners are at liberty to go before the High Court.”

22. Pursuant to the aforesaid liberty granted by this Court, a writ application was moved by the respondents praying for quashing the orders dated 20-5-1987 and 27-5-1987 of Appellant 1 Commissioner of Police and 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 functions and festivals such as:

(i) Ananda Purnima,

(ii) Shravani Purnima,

(iii) Bijaya Dashami,

(iv) Dipavali,

(v) New Year Day,

(vi) Falguni Purnima (Vasanttotsava), and

(vii) Dharma Maha Chakra and Dharma Maha Sammelans.

23. The respondents based their right to perform Tandava dance in procession and in public gatherings on the basis of the prescription of their Guru Shri Ananda Murtiji in the recent 4th Edn. 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 application 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 perform such a dance on the occasion prescribed in this behalf, subject to the restrictions imposed under Articles 25 and 26 of the Constitution and the Court was powerless to examine as to whether such prescription of their Guru formed essential and integral part of the religious rites to be observed by the Ananda Margis. Against the 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 Judge. The stay application and the appeal were heard by the Division Bench 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 8-11-1990 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. On 21-12-1990, this Court 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 some time and having considered the decision of the three learned Judges of this Court in Acharya Jagdishwaranand Avadhuta case (1983) 4 SCC 522 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 Bench. The Constitution Bench, by an order dated 4-12-2001, observed that there was 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 on 17-1-2002, the Bench expressed its opinion as follows:

“9. 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 Jagdishwaranand Avadhuta (1983) 4 SCC 522 and the order passed by a two-Judge Bench in Bijoe Emmanuel (1986) 3 SCC 615, AIR 1987 SC 748, (1986) 3 SCR 518. In the latter case, the two-Judge Bench has explained the judgment of this Court in Acharya Jagdishwaranand Avadhuta (1983) 4 SCC 522 and held that Ananda Margis could claim the benefit of Article 25(1) leaving 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 impugned judgment holding that the order passed by the appellants was violative of Articles 25 and 26 of the Constitution.

10. We feel that the observation made by the two-Judge Bench in Bijoe Emmanuel (1986) 3 SCC 615, AIR 1987 SC 748, (1986) 3 SCR 518 that the sentence appearing in Acharya Jagdishwaranand Avadhuta AIR 1954 SC 282, 1954 SCR 1005 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 (1983) 4 SCC 522 had reached a definite conclusion that the claim of the respondents 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 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 order.

11. Another aspect which is required to be considered is whether the High Court was right in holding that prescribing of Tandava dance with damroo, skull and trishul as a necessary religious rite of Ananda Margis by their Guru after the rendering of the judgment by this Court would translate into a practice and the religious rites of Ananda Margis or not. As the earlier judgment had been rendered by a three-Judge Bench, it would be appropriate that this aspect is also examined by a three-Judge Bench.

12. 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, we request the learned Chief Justice to place this matter before a Bench of three learned Judges.”

24. 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 the other for all these years and has now been placed before this Bench for final hearing and for resolution of the long-standing dispute between the parties.

25. We heard the arguments of Mr Tapash Ray, learned Senior Counsel for the appellants and Mr T.R Andhyarujina, learned Senior Counsel for the respondents.

26. 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 a number of judgments in support of their respective contentions.

27. Mr Tapash 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 religious rite.

(b) Ananda Margis have no fundamental right within the meaning of Articles 25 and 26 of the Constitution to perform Tandava dance in public streets or public places on their mere assertion that their Guru recently prescribed Tandava dance as part of their religious rite.

(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 Ananda Margis to perform the Tandava dance in public procession on the occasion of their principal religious functions mentioned in the writ petitions are hit by the principle of res judicata in view of the negative decision of this Court on identical issues in Acharya Jagdishwaranand Avadhuta case (1983) 4 SCC 522.

(d) The subsequent order dated 1-12-1987§ of this Court in Writ Petitions (Civil) Nos. 1317-18 of 1987 to the effect that the case 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 case (1983) 4 SCC 522 has not enabled the High Court to reopen the issues already conclusively decided by this Court in the above case.

(e) In view of the fact that Ananda Marga 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 public streets and 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 in the matter of deciding as to what rites and ceremonies are essential for his followers and whether the court is powerless to determine if such particular rite or observance is an essential tenet of the religion the followers of Ananda Marga hold.

(g) The respondents also cannot be permitted to carry trident, daggers or knives 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 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 especially children, thereby provoking public annoyance.

28. Mr T.R Andhyarujina, learned Senior Counsel, made elaborate submissions in support of the respondents' case and cited many decisions.

29. He submitted that the issue raised in the present appeal had been raised by way of an application under Article 32 of the Constitution before 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.

30. The action of the appellants in refusing the Ananda Margis the right to perform the Tandava dance was violative of Articles 15, 19, 25 and 26 of the Constitution.

31. 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:

1. Commr., H.R.E v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282, 1954 SCR 1005, SCR at p. 1028.

2. Sardar Syedna Taher Saifuddin Saheb v. State Of Bombay AIR 1962 SC 853, 1962 Supp (2) SCR 496, SCR at pp. 531-32.

3. Seshammal v. State of T.N (1972) 2 SCC 11, AIR 1972 SC 1586

4. Ratilal Panachand Gandhi v. State of Bombay AIR 1954 SC 388, 1954 SCR 1055.

5. N. Adithayan v. Travancore Devaswom Board (2002) 8 SCC 106.

6. Durgah Committee, Ajmer v. Syed Hussain Ali AIR 1961 SC 1402, (1962) 1 SCR 383, SCR at p. 412.

32. In the present case, Ananda Murtiji had prescribed a procession on six days with Tandava dance in Carya Carya in 4th Edn., 1986. This precept is binding 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 Vol. II, p. 84, para 8 of the paper-book.)

33. It is significant that this Court in its order of 1-12-1987§ did not dismiss the fresh writ petition filed after its decision in Acharya Jagdishwaranand Avadhuta case (1983) 4 SCC 522. When the precepts were recorded in 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 has been done by the Division Bench of the High Court now and it has held that the precept was established as part of Ananda Margis' religious belief.

34. 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” under Section 2(c) of the Arms Act. Learned Senior Counsel cited Acharya Jagadishwarananda Avadhuta v. Commr. of Police AIR 1990 Cal 336 (AIR at p. 352) and Acharya Jagdishwaranand Avadhuta case (1983) 4 SCC 522 which also notes that these are only “symbolic” items.

35. There can be no question of any “public order” being violated by the procession of Ananda Margis involved in the Tandava dance. The concept 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 Ram Manohar Lohia (Dr.) v. State of Bihar AIR 1966 SC 740, (1966) 1 SCR 709 (SCR at p. 745), every breach of peace does not lead to public disorder.

36. Learned Senior Counsel for the respondents relied on the decision of the Constitution Bench in Himat Lal K. Shah v. Commr. of Police (1973) 1 SCC 227, (1973) 2 SCR 266 for the proposition that citizens have a right to carry out religious processions in public streets.

37. 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 public, there would be no objection. This is to ignore the fact that the 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 Commr. of Police v. Acharya Jagdishwarananda Avadhuta AIR 1991 Cal 263 (AIR at p. 270).

38. 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.

39. 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 Constitution that this Court itself was persuaded with the earlier judgment did not finally conclude the matter. That is why, this Court directed the respondents herein to go before the High Court and directed the High Court 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 1-12-1987 did not dismiss the fresh writ petition filed after its decision in Acharya Jagdishwaranand Avadhuta case (1983) 4 SCC 522. When the precepts were recorded in Carya Carya and made part of the new petition under Article 32 of the Constitution, 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 appearing on either side held that the precept was established as part of Ananda Margis's religious belief. Therefore, the submission 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 was at large, we are of the opinion that the High Court was right in considering the entire matter afresh and determining the same. The High Court was competent to consider the question whether Ananda Margis can claim the benefit of Article 25(1) of the Constitution since, in our view, the said question is still open for reconsideration. This apart, this Court in arriving at its finding that the Tandava 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 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 judgment. The High Court, therefore, was right in holding that it had the jurisdiction to entertain the present writ proceedings.

40. 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 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 been asked by the Court to produce any literature in this regard but this could not be done.

41. 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 relied upon several authorities and that the Hindus in general have always believed in dance as a form of worship vide Sivaramamurti, C.: Nataraja in Art, Thought and Literature. He would further submit that Ananda Murtiji was considered by 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 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.

42. I am of the opinion that there is merit and substance in the contention 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 practice was recently introduced cannot make it any the less a matter of religion.

43. 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 Durgah Committee, Ajmer v. Syed Hussain Ali AIR 1961 SC 1402, (1962) 1 SCR 383. The particular passage relied on by learned counsel for the appellant is as follows: (AIR p. 1415, para 33)

“[I]n 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 purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26. Similarly even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and integral part of it and no other.”

44. This observation of this Court, in our view, runs counter to the observation of Mukherjee, J. in Commr., H.R.E v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282, 1954 SCR 1005. In this context, it is useful to reproduce a passage from the above judgment which explains the definition of religion in paras 14 and 19 of the judgment which are: (AIR pp. 289 & 290)

“We now come to Article 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 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 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 would be regarded as parts of religion.”

45. In a subsequent decision, namely, His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami v. State of T.N, this Court has held that:

“Worshippers lay great store by the rituals and whatever other people, not of the faith, may think about these rituals and ceremonies, they are a part of the Hindu religious faith and cannot be dismissed as either irrational or superstitious.”

46. Mr Tapash Ray again submitted that the directive regarding the performance of Tandava dance was contained in Carya Carya under the 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 where the Tandava dance has to be performed which is religious in nature. It is stated in Chapter 15 of Carya Carya that our social-cum-spiritual functions will be considered part of our spiritual 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 the chapter entitled “The significance of Siva's dance” from Sivaramamurti, C.: Nataraja in Art, Thought and Literature. It is to be noticed that since 1966 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 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 occasion to consider the same. In our view, the performance of Tandava dance in public procession forms a 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 practise 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 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 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 shows that it does 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 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. Chief Election Commr. (1978) 1 SCC 405, AIR 1978 SC 851

47. 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 case (1983) 4 SCC 522 at para 11 wherein it has been observed as under:

“11. Ananda Marga appears to satisfy all the three conditions, 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 be appropriately treated as a religious denomination, within the Hindu religion.”

48. 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 the word “religion” under Article 25(1) of the Constitution 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 have categorically dealt with the question following the decisions exactly on the same point in the case of Shirur Mutt AIR 1954 SC 282, 1954 SCR 1005 and National Anthem case (1986) 3 SCC 615, AIR 1987 SC 748, (1986) 3 SCR 518 and Venkataramana Devaru v. State of Mysore AIR 1958 SC 255, held that a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and outside authority has no jurisdiction to interfere with their decision in such matters.

49. 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 by the respondents. Particulars were also furnished by the respondents in their writ petition in this regard. According to the respondents, processions of various hues are taken out regularly in Calcutta and the celebration of the 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 Sevashram Sangha (a social and not even a religious organisation) is allowed to move on horseback carrying swords through the streets. Besides these, the example of Bolana and Gajana festivals in Burdwan, Birbhum, Murshidabad, Nadia in West Bengal, wherein a public dance with severed 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 takes only a few minutes by a very limited number of persons to display the same compared to other religious festivals. The plea of congested streets is an eyewash in that the appellants allow other groups of other hues 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 order (sic) 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 rise to 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 on 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 of the Constitution. It was submitted by learned Senior Counsel for the respondents that in the procession of the followers of Ananda Marga, 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 1000 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 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 one. 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 Marga to perform such Tandava dance in public inasmuch as the said dance 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.

50. According to Mr Andhyarujina, a wrong impression is created about the religious procession by Ananda Margis as if it consisted of a huge number of violent persons brandishing knives or tridents and displaying human skulls 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:

“1. Six times a year on days of festivals and social functions.

2. Approximately 1000 members in procession.

3. Five or six 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.

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 deep spiritual significance.

7. The organisers of the procession have given undertaking to the Commissioner of Police to maintain peace and discipline when conducting the procession and the procession will be taken only on a specified route or roads.”

51. 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 case (1983) 4 SCC 522 in which this Court held that there is no justification in any writings of Shri Ananda Murtiji that Tandava dance must be performed in public. On this finding, this Court held that Tandava dance was not proved to be an essential religious rite to be performed by every Ananda Margi in procession.

52. The tenets of the Ananda Marga are both oral and written as in the case of many religions. The fact that there were no writings shown to the Court that Tandava dance is to be performed in public, did not negate the existence of such precepts by Ananda Murtiji. As in the case of many religions many of Ananda Murtiji's precepts are a matter of oral prescription. However, in the 1986 Edn. of Carya Carya specific mention was made by Ananda Murtiji of the requirement of Tandava dance in procession on special functions and festivals.

53. These written mandatory directions of Ananda Murtiji were specifically pleaded by the petitioner at pp. 9-10, paras 9 and 10 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 Marga but it does not bind the respondents”.

54. The (sic High) Court rightly observed that the fact that the practice is recently prescribed by Ananda Murtiji is not a reason for saying that it is not a part of the religious practices and beliefs of the denomination.

55. I shall now consider whether Ananda Margis have the fundamental right under Articles 25 and 26 of the Constitution.

56. The Ananda Margis are a religious denomination and as such are entitled to the protection under Articles 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 that:

“Religious practices or performances of acts in pursuance of religious beliefs are as much a part of religion as faith or belief in particular doctrines. … No outside authority has any right to say that these are not essential parts 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 Panachand Gandhi v. State of Bombay AIR 1954 SC 388, 1954 SCR 1055 (AIR p. 392, para 13), citing with approval Davar, J. in Jamshedji Cursetjee Tarachand v. Soonabai ILR (1909) 33 Bom 122, Commr., H.R.E v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282, 1954 SCR 1005, SCR at pp. 1021-22, 1025, Sardar Syedna Taher Saifuddin Saheb v. State Of Bombay AIR 1962 SC 853, 1962 Supp (2) SCR 496, SCR at pp. 531-32]. In Venkataramana Devaru case AIR 1958 SC 255 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 part of religion.

57. The exercise of the freedom to act and practise 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 practising the religion by outward actions which are as much part of religion as the faith itself. The freedom to act and practise can be subject to regulations. In our Constitution, subject to public order, health and morality 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 the 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 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 84 L Ed 1213, 310 US 296 (1939), L Ed at pp. 1213-1218, United States v. Ballard 88 L Ed 1148, 322 US 78 (1943), L Ed at pp. 1153, 1154.)

58. I shall now consider the right of the Ananda Margis to religious procession. In Parthasaradi Ayyangar v. Chinnakrishna Ayyangar ILR (1882) 5 Mad 304 Turner, C.J said: (ILR p. 309)

In India, persons 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 the Magistrates may lawfully give to prevent obstruction of thoroughfare 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 of the Magistrate should be exercised in defence of rights rather than in their suspension. (ILR pp. 220-21)

59. These observations were quoted with approval by this Court in Gulam Abbas v. State of U.P (1982) 1 SCC 71, (1982) 1 SCR 1077, SCR at pp. 1130-33. It was observed that the authorities should not in the face of such religious rights prohibit religious processions on the “facile ground of public peace and tranquillity” but adopt a positive approach to protect fundamental rights under Articles 25 and 26 of the Constitution.

60. Moreover, “public order” has a larger connotation than “law and order”. Contravention of law to affect public order must affect the community or the public at large. A mere disturbance of law and order leading to disorder is not one which affects “public order”. (See Ram Manohar Lohia (Dr.) v. State of Bihar AIR 1966 SC 740, (1966) 1 SCR 709.)

61. 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.

62. The Police Commissioner answers the charge of discrimination by stating that “activities of Ananda Margis cannot come within the scope of religious functions or practices as compared to well-established practices in festivals of Muslims and Sikhs”. It is not for the Police Commissioner to give his disapproval to a practice of a particular sect which is 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 in the Constitution (see United States v. Ballard 88 L Ed 1148, 322 US 78 (1943).)

63. 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.

64. 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 for all religions. This Court has rightly said (1986) 3 SCC 615, AIR 1987 SC 748, (1986) 3 SCR 518:

“[O]ur tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practises 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.

65. This Court has explained in a number of decisions that 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. This proposition was authoritatively laid down by the Constitution Bench of this Court (seven Judges) in Shirur Mutt case AIR 1954 SC 282, 1954 SCR 1005 as extracted in paras supra. This is the most essential part of the fundamental right of freedom of religion. This Court in subsequent cases has followed the proposition in Shirur Mutt case AIR 1954 SC 282, 1954 SCR 1005, Sardar Syedna Taher Saifuddin Saheb v. State Of Bombay AIR 1962 SC 853, 1962 Supp (2) SCR 496 (five Judges), SCR at pp. 531-32 and in Seshammal v. State of T.N (1972) 2 SCC 11, AIR 1972 SC 1586 (five Judges), SCC at p. 21.

66. In the case of Ratilal Panachand Gandhi v. State of Bombay AIR 1954 SC 388, 1954 SCR 1055 this Court emphasised that: (AIR p. 392, para 13)

“No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate.”

This Court quoted with approval Jamshedji Cursetjee Tarachand v. Soonabai ILR (1909) 33 Bom 122 where the Bombay High Court held: (ILR p. 210)

“If this 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 conscience of a donor who makes a gift in favour of what he believes to be in advancement of his religion and for the welfare of his community or mankind.”

67. As late as 2002, this Court has reiterated this in N. Adithayan v. Travancore Devaswom Board (2002) 8 SCC 106, SCC at p. 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” (SCC para 16).

68. The obiter of Gajendragadkar, J. in Durgah Committee, Ajmer v. Syed Hussain Ali AIR 1961 SC 1402, (1962) 1 SCR 383 to the effect that the Court may have carefully scrutinised 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 a seven-Judge Bench in the case of Shirur Mutt AIR 1954 SC 282, 1954 SCR 1005.

69. Seervai in Constitutional Law of India (4th Edn.), Vol. II, at p. 1268 has criticised this as obiter, as inconsistent with earlier decisions of this Court cited above.

70. Subject to consideration of public order, health and morality, it is not open for anybody to question the tenets and practices of religion, however irrational they may appear to an outsider.

71. It is brought to our notice that the following observation in Acharya Jagdishwaranand Avadhuta case (1983) 4 SCC 522 is not correct in law:

“Mr Tarkunde … had claimed protection of Article 25 of the Constitution but in view of our finding that Ananda Marga is not a separate religion, application of Article 25 is not attracted.”

As rightly stated by this Court in Bijoe Emmanuel case (1986) 3 SCC 615, AIR 1987 SC 748, (1986) 3 SCR 518, SCC at p. 631, this sentence appears to have crept into the judgment by some slip.

71-A. 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 freedom of religion under Article 25. It is undisputed that under Article 26(b) a denomination is entitled to manage its own affairs in matters of religion.

71-B. The above observation in Jagdishwaranand case (1983) 4 SCC 522 is also contrary to the interpretation of Article 25(1) given by this Court in the Constitution Bench of seven Judges in Shirur Mutt case AIR 1954 SC 282, 1954 SCR 1005 where the Court observes that: (AIR p. 289, para 14)

“Institutions, as such cannot practise or propagate religion; it can be done 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.”

72. In this context, I can also usefully refer to the decision of this Court in Ratilal Panachand Gandhi v. State of Bombay AIR 1954 SC 388, 1954 SCR 1055.

73. I am, therefore, of the opinion that the observation of the learned Judges in the referring order dated 17-1-2002 is not correct.

74. I have given my thoughtful consideration to the important questions of law posed for our consideration.

75. Article 25(1) guarantees to every person freedom of conscience and the right to freely profess, practise 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 subject to restrictions which may be imposed by the State on the grounds of:

1. Public order, morality and health;

2. Other provisions of Part III of the Constitution;

3. Regulating non-religious activity associated with religious practice;

4. Social welfare and reform; and

5. Throwing open Hindu religious institutions of public character to all classes of Hindus.

76. The full concept and scope of religious freedom is that there are no restraints upon the free exercise of religion according to the dictates of one's conscience or upon the right to freely profess, practise 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 to his God is made no concern of the State. Freedom of conscience and religious belief cannot, 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.

77. 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 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. It must be remembered that crime will not become less odious because it is 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 it is in accordance with the creed of a religious body.

78. The liberty of the individual to do as he pleases, even in innocent 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 an individual and the interest of society, the interest of society must prevail. 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 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 religious 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 (sic it) may not conflict with public welfare or morality.

Jehovah's Witnesses and Ananda Margis

79. The principle of secularism enshrined in the Constitution touched its high watermark in Jehovah's Witnesses case (1986) 3 SCC 615, AIR 1987 SC 748, (1986) 3 SCR 518, wherein this Court held that children of Jehovah's Witnesses' faith need not 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 anthem. However, according to the Court, proper respect is shown to the 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. Therefore, the expulsion of the children from the school for the reason that they did not join in the singing of national anthem, though they did stand up respectfully, when the anthem was sung would be violative of Article 19(1) and Article 25(1), especially when it was sought to be done in pursuance of two circulars issued by the Director of Public Instruction, having no statutory force. In the case of Most Rev. P.M.A Metropolitan v. Moran Mar Marthoma 1995 Supp (4) SCC 286, AIR 1995 SC 2001 (excommunication case) a sharply divided Court upheld the right of the leaders of faith to excommunicate “fallen” believers for religious reasons — no doubt leaving it to the courts to determine whether an excommunicatory reason was religious or not. The principle of excommunication is that the collective right will prevail over individual right. However, in 1995, this Court recognised the power of excommunication as a measure of discipline. In the case of Mohd. Hanif Quareshi v. State Of Bihar AIR 1958 SC 731, 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 part of the Islamic faith. While prohibiting indiscriminate slaughter of cows the Court did two things:

1. Muslim sentiments were respected and butchers retained a large part of their trade.

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.

80. Here, the Court has assumed the role of the theologian after making a roving enquiry. While the decision is criticised on the ground that once this door is opened, there is no limit to which the Court cannot go, the answer is that the power of judicial review as a part of the basic structure is vested with the Court and if someone has to be trusted, let it be the courts even in matters of faith. This Court, as stated earlier, considered the question whether performance of Tandava dance is a religious rite or practice essential to the tenets of the religious faith of the Ananda Margis. The Court while upholding that Ananda Marga satisfies all the three conditions envisaged by Article 26 of the Constitution [(1. It is a collection of individuals who have a system of beliefs which they regard as conducive to their spiritual well-being. 2. They have a common organisation. 3. The collection of these individuals has a distinctive name.)] and as such was a religious denomination negatived their claims to perform Tandava dance in public. The specific case of the petitioners is that Shri Ananda Murtiji introduced Tandava as a part of religious rites of Ananda 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 spiritual preceptor, they perform a brief welcome dance of Tandava using skull and knife for 2/3 minutes. 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 that 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 dance to be performed in the public is a matter of religious rite. The Court went on to observe that there is nothing (sic) 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.

81. It would be pertinent to mention that the Sikh community carry “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 “Muharram” festival and persons participating in such processions beat their chest with hands and chains and inflict injuries on themselves and the same has been permitted as a religious practice of that community.

82. 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 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 emphasise the kinship with animals. Trees have the divinity Vanadevata. 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 of Siva, rules the entire nature. All these divinities serve to consecrate every aspect of daily life. The whole pantheon serves to emphasise the one ultimate Reality.

83. Reading and reciting old scriptures, for instance, Ramayana or Koran or Bible or Guru Granth Sahib is as much a part of religion as offering food to a deity by a Hindu or bathing the idol or dressing it and going to a temple, mosque, church or gurudwara….

84. 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. 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. 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 problems requiring intervention of authorities concerned who are entrusted with the duty of maintaining law and order.

What is religion

85. 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 it is an unending discovery into the 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 practise. George Bernard 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 as religion.” Essentially, religion is based on “faith”. Some critics say that religion interferes with science and faith. They say that religion leads to the growth of blind faith, magic, sorcery, human sacrifices, etc. No doubt, the 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 civilisation viz. the Indus Valley civilisation shows faith of people in Siva and Sakthi. The period of Indus Valley civilisation was fundamental religion and was as old as at least the Egyptian and Mesopotamian cultures. 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. by the primitive religious tribes shows that animism viz. worship of trees, stones, animals was practised on the strong belief that they were abodes of spirits, good or evil. Modern Hinduism to some extent includes Indus Valley civilisation culture and religious faith. Lord Siva is worshipped in the form of linga. Many symbols have been used in Hindu literature. Different kinds of symbols and images have different sanctity. Baring of chest, arms and other parts of body represent the weapons of symbols of Siva. Modern 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.

86. The expression “religion” has not been defined in the Constitution and it is incapable of specific and precise definition. Article 25 of the Constitution guarantees to every person, freedom of conscience and right freely to profess, practise 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 and extends to even rituals. Belief in religion is belief in practising a particular faith, to preach and to profess it. Mode of worship is an 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. 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 Articles 25 and 26 of the Constitution extends guarantee for 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 an essential and integral part. It is only those practices which are integral part of religion that are protected. What would constitute an essential part of religion or religious practice is to be determined 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 practising that particular practice as an integral part of the religion or not. It is also necessary to decide whether the particular 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.

87. It is not uncommon to find that those (sic) delve deep into scriptures to ascertain the character and status of a particular practice. It has been authoritatively laid down that cow sacrifice is not an obligatory overt-act for a Muslim to exhibit his religious belief. No fundamental right can be claimed to insist on slaughter of a healthy cow on Bakr Id 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” and “skull” by a few in a procession to be taken out by a particular community following a particular religion is by itself an integral part of religion. When persons following a particular religion carry trishul, conch or skull in a procession, they merely practise that which is part of their religion which they want to propagate by carrying symbols of their religion 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 Articles 25 and 26 of the Constitution.

88. Therefore, Ananda Margis have the right to take out a procession in public places after obtaining necessary permission from the authorities concerned 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 of other people who equally enjoy the fundamental right to exercise their religious freedom. An Ananda 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. No doubt, such religious freedom is subject to health and subject to laws made for social welfare. Every person has got the right to follow, practise and propagate his religion.

89. The Commissioner has got power to regulate assemblies, meetings and processions in public places, etc. It specifically provides that he is entitled to prescribe the routes by which and the times at which such processions may pass, in order to keep the public places (sic free) 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.

90. Hence, to preserve public peace and to avoid damages to public properties and keeping this in mind the Ananda Margis are permitted to go on procession and perform Tandava dance with symbolic skull, trishul, knife, damroo and sword subject to the following terms and conditions:

1. The Commissioner of Police may prescribe the route.

2. Regulations

(i) The participants to the procession shall not carry wooden bars, weapons, metal rods, weapons capable of inducing violence.

(ii) Loudspeakers 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.

(vi) Objectionable slogans and illegal slogans or provocative slogans affecting others' sentiments shall not be expressed or voiced.

(vii) Processionists shall proceed in five persons row and shall keep to 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 be followed.

91. For the foregoing reasons, I am of the opinion that the appeal filed by the appellants has no merits and is, therefore, dismissed.

92. In my opinion, it is a fit case for awarding of exemplary costs to the respondents. Since the 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.

Civil Appeal No. 6230 of 1990, decided on March 11, 2004

Commissioner Of Police And Others v. Acharya Jagadishwarananda Avadhuta And Another

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants’ Arguments (Commissioner of Police)

Respondents’ Arguments (Ananda Margis)

Table of Precedents Cited

Court’s Reasoning and Analysis

Holding and Implications

Commissioner Of Police And Others v. Acharya Jagadishwarananda Avadhuta And Another

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