Order
1. The Commissioner of Police, West Bengal and others have filed this appeal against the judgment and order of the Division Bench of the Calcutta High Court in FMAT No. 1451 of 1990 dated 8-11-1990, reported in Commr. of Police v. Acharya Jagdishwarananda Avadhuta AIR 1991 Cal 263 wherein the High Court has allowed the writ petition filed by the Acharya Jagdishwarananda Avadhuta, Public Relations Secretary, Ananda Marga Pracharak Sangha (hereinafter referred to as “the respondents”) declaring the order passed by the appellants prohibiting the respondents from taking out a procession in which the Tandava dance is performed in public on certain days, as illegal.
2. The performance of Tandava dance in public is being prohibited by the State authorities under orders passed from time to time under Section 144 of the Code of Criminal Procedure. Representative of Ananda Marga challenged the prohibitory order issued under Section 144 CrPC, by way of a writ petition in the year 1982. The said writ petition was dismissed by the High Court. After the dismissal of the said writ petition the respondents filed a petition under Article 32 of the Constitution in this Court alleging the violation of their fundamental rights guaranteed under Articles 25 and 26 of the Constitution. The petition filed in this Court was dismissed by a three-Judge Bench in Acharya Jagdishwaranand Avadhuta v. Commr. of Police (1983) 4 SCC 522. After due consideration of the facts and the relevant case-law it was held that Ananda Marga was a religious denomination within the Hindu religion and not a separate religion. Performance of Tandava dance in processions in public streets or in gatherings in public places was not an essential religious rite of the followers of Ananda Marga. That Ananda Marga as a religious order was of recent origin and Tandava dance as a part of religious rites of that order was still more recent. It was further observed that even conceding that Tandava dance has been prescribed as a religious rite for every follower of Ananda Marga, it does not follow as a necessary corollary that Tandava dance to be performed in the public was a matter of religious rite. On these findings it was observed, in para 15, as under:
“15. Once we reach this conclusion, the claim that the petitioner has a fundamental right within the meaning of Article 25 or 26 to perform Tandava dance in public streets and public places has to be rejected. In view of this finding it is no more necessary to consider whether the prohibitory order was justified in the interest of public order as provided in Article 25.”
3. After this the Court examined the prohibitory order passed by the Commissioner of Police under Section 144 of the Criminal Procedure Code. After due discussion it was ultimately concluded, in para 18, as under:
“18. It is appropriate to take note of the fact that the impugned order under Section 144 of the Code did not ban processions or gatherings at public places even by Ananda Margis. The prohibition was with reference to the carrying of daggers, trishuls and skulls. Even performance of Tandava dance in public places, which we have held is not an essential part of religious rites to be observed by Ananda Margis, without these, has not been prohibited.”
4. In the year 1986, Ananda Murtiji who had founded the Ananda Marga prescribed the carrying of damroo, skull and trishul while performing the Tandava dance and carrying of a skull, knife, trishul as a part of religious rites of the sect. Based on this the respondents filed a set of writ petitions Nos. 1317-18 of 1987 before this Court which was disposed of by this Court on 1-12-1987 by passing the following order:
“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. The writ petitions are disposed of.”
5. After this the respondent filed the writ petition in the High Court of Calcutta which was allowed by the Single Bench. The State of West Bengal filed the appeal which has been dismissed by the impugned order.
6. One of the pleas raised before the High Court was that in the face of the judgment in Acharya Jagdishwaranand Avadhuta (1983) 4 SCC 522 the point was not res integra and the High Court could not go into this point afresh in view of the order passed by this Court. This objection has been overruled by the High Court keeping in view three factors: firstly, that the Supreme Court while disposing of the subsequent writ petition, under Article 32, itself was persuaded that the earlier judgment did not finally conclude the matter. It was observed that it appeared that the Supreme Court had directed the respondents to go before the High Court and the High Court was directed to reconsider the matter. Secondly, that the observation made by the Supreme Court in its earlier order that Article 25 did not apply to the Ananda Margis was explained by the Supreme Court in its subsequent judgment in Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615, AIR 1987 SC 748, (1986) 3 SCR 518 whereby this Court explained the observation made by the three-Judge Bench in the case of Acharya Jagdishwaranand Avadhuta (1983) 4 SCC 522 by observing as under:
“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).”
Thirdly, that after the judgment of the Supreme Court, the founder of the Ananda Marga sect had prescribed the performance of the Tandava dance with skull, damroo and trishul as religious rites. The High Court struck down the order passed by the appellants as being violative of Articles 25 and 26. Striking a discordant note with the judgment of this Court in Acharya Jagdishwaranand Avadhuta (1983) 4 SCC 522 the High Court held that the order passed by the appellants was violative of Articles 25 and 26 of the Constitution.
7. This appeal had come up for hearing before the two-Judge Bench on 13-11-1992. The said Bench referred the matter to a Constitution Bench by observing as under:
“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.”
8. The matter was taken up by the Constitution Bench on 4-12-2001. The Constitution Bench noticed that neither side had requested the reference to the Constitution Bench. That neither party had disputed the correctness of the judgment rendered by this Court in Acharya Jagdishwaranand Avadhuta (1983) 4 SCC 522. In these circumstances, there was no justification for hearing the appeal by the Constitution Bench and the same must be placed before a Bench of two Judges for final disposal.
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 (1983) 4 SCC 522 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.