Commissioner of Police and Others vs. Acharya Jagadishwarananda Avadhuta and Another

 

Supreme Court—Mar 11 2004

Honourable Judges: Hon'ble Mr. Justice S. Rajendra Babu, Hon'ble Dr. Justice AR.

Lakshmanan and Hon'ble Mr. Justice G.P. Mathur

Issue: Religious practise.

Date Of Judgment: Mar 11 2004

Case No: Civil Appeal No. 6230 of 1990

 

JUDGMENT:

Rajendra Babu, J.

This is second round of litigation. In the first round of litigation question raised before this
Court was whether performance of Tandava dance in public is an essential practice of Ananda
Margi order or not. This court in Acharya Jagdishwarana Avadhuta and Others vs. The
Commissioner of Police, Calcutta andAnother, (First Ananda Margi case), held that Tandava
dance in public is not 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 Petition (Civil) Nos. 1317-18 of 1987. This
Court with the following observation disposed it of:

"We are of the view that these cases should appropriately be examined by the High Court
keeping in view that has been said by this Court in the Judgment in Acharya Jagdishwaranda
Avadhuta amp; Others vs. The Commissioner of Police, Calcutta and Another. Petitioners are at
liberty to go before 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 Ananda Margi faith and 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 sometime and having considered the decision of the three learned
Judges of this Court in Acharya Jagdishwaranand Avadhuta etc. vs. Commissioner of Police,
Calcutta and Anr., we are of the view that this is a matter which requires consideration y 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 that (i)
that the Bench does not express any difficulty in following the earlier judgment, (ii) that they do
not set out any substantial question of law which requires the decision of a Constitution Bench
since that order merely stated that the matter should be heard and decided by a Constitution
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 the
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 it''s
finding that Tandava dance is an essential and integral part of Ananda Margi faith based on the
revised edition of Carya Carya. A bench consisting of three judges of this Court in first Ananda
Margi case arrived at a unanimous conclusion on facts that Tandava dance in public is not an
essential and integral part of Ananda Margi faith. In order to arrive at this conclusion this Court
inter alia took the following four aspects into account.

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

organization claimed to have been dedicated to the service of humanity in different spheres of
life such as physical, mental and spiritual, irrespective of caste, creed or colour, in the year 1955.

2. Ananda Marga contains no dogmatic beliefs and teaches the yogic 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 Shiviate order, which is a well-known
segment of Hindu religion.

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

"...Ananda Marga as a religious order is of recent origin and Tandava 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
performance of Tandava dance by every follower of Aanda 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 the public is a matter of
religious rite..."

7. By the above finding this Court was categorical in it''s judgment that Tandava dance in public
is not an essential part of religious rites of Ananda Margi faith. The conclusion arrived at by this
Court regarding the non-essential nature of Tandava dance to Ananda Margi faith was
principally based on the fact that the order itself is of recent origin and the practice of dance is
still more recent. Court even went to the extent of assuming that Tandava dance was prescribed
as a rite and then arrived at the conclusion that taking out 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 non could be shown to us by Mr. Tarkunde despite
an enquiry by us in that behalf."

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 The Commissioner vs. L.T.
Swamiar of Srirur Mutt, SSTS Saheb vs. State of Bombay, and Seshammal vs. State of
Tamilnadu, 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 the superstructure of
religion is built. Without which, a religion will be no religion. Test to determine whether a part
or practice is essential to the religion is - to find out whether the nature of religion will be
changed without that part or practice. If the taking away of that part or practice could result in a
fundamental change in the character of that religion or in its belief, then such part could be
treated as an essential or integral part. There cannot be additions or subtractions to such part.
Because it is the very essence of that religion and alterations will change its fundamental
character. It is such permanent essential parts is what is protected by the Constitution. No body
can say that essential part or practice of one''s religion has changed from a particular date or by
an event. Such alterable parts or practices are definitely not the ''core'' of religion whether the
belief is based and religion is founded upon. It could only be treated as mere embellishments to
the non-essential part or practices.

10. Here in this case 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) Ananda Margi order was in existence. Therefore, Tandava dance is not the ''core'' upon
which Ananda Margi order is founded. Had Tandava dance been the core of Ananda Margi faith,
then without which Ananda Margi faith could not have existed.

11. There is yet another difficulty is accepting the reasoning of the High Court that a subsequent

addition in Carya Carya could constitute Tandava dance as essential part of Ananda Margi faith.
In a given case it is for the Court to decide whether a part or practice is an essential part of
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 Court by making alteration in
its doctrine. For example, in N. Adithayan vs. Travancore Devaswaom Board, 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. It open for that temple
authorities to subsequently decide only brahmins could be appointed as poojaris by way of some
alterations in the relevant doctrines? We are clear that no party could ever revisit such a finding
a 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
only be treated as a circuitous way to overcome the finding of a Court. If subsequent alterations
in doctrine could be allowed to create new essentials, the judicial process will then be reduced
into a useless formality and futile exercise. Once there is a finding of fact by the competent
Court, then all other bodies are estopped from revisiting that conclusion. On this count also the
decision of 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
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 amp; Ors. vs. State of Kerala and Ors., because reference to three
Judges'' Bench has arisen on account of these observations. In Bijoe Emmanuel''s case (supra)
this Court adverted to the decision of this Court in the earlier round of litigation in First Ananda
Margi case (supra) and observed as follows:-

"The question in that case was whether the Ananda Margis had a fundamental right within the
meaning of Article 25 or Article 26 to perform Tandava dance in public streets and public places.
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 and 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.''

The sentence appears to have crept into the judgment by some slip. It is not a sequiter to the
reasoning of the court on any of the issues. In fact, in the subsequent paragraphs, the Court has
expressly proceeded to consider the claim of the Ananda Marga 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''s case (supra)
insofar as the first Anand Margi case is concerned. As noticed therein, these observations are
not the basis of the reasoning of the court on any of the issues. Therefore, it would not affect the
final outcome of the case.

15. The appeal is allowed accordingly.

JUDGMENT

Dr. AR. Lakshmanan, J.:-This appeal stems from the judgment and order dated 8.11.1990
passed by the Division Bench of the Calcutta High Court in F.M.A.T. 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 of India and the Police Authorities have no jurisdiction to
impose ban on such a dance."

2. This case has a long and chequered carrier. 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:

3. 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
unliftment 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 day time and fire mashal''s or damroo during right 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 Shaivite order within Hindu religious 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.

4. The respondents took out a procession with human skulls, daggers, trident etc. on 10.8.1979.
According to the police, the procession was to take out violating prohibitory ban in regard to
carrying of those articles in processions in public streets. In that circumstances, the Police
Authorities declared the assembly unlawful and the police force was compelled to intervene. the
Commissioner of Police, Calcutta made repetitive orders under Section 144 of the Code of
Criminal Procedure, 1973 since August, 1979, directing that no member member of a procession
or assembly of five or more persons should carry any fire arms, explosive, swords, spears,
knives, trident, lathis or any article which may be used as weapon of offence or any article likely
to cause annoyance to the public. This order of the Police Commissioner was challenged by the
General Secretary of the Ananda Marga in a Writ Petition No. 903 of 1980 before the High Court
of Calcutta. The Calcutta High Court, by order dated 23.9.1980, 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 of India in this Court being registered as Writ
Petition Nos. 6890 and 7204 of 1982.

5. This Court passed an order in the said writ petition rejecting the same on the finding that
performance of Tandava dance in procession in the public streets or in gatherings in public
places was not an essential religious rite of the followers of the Ananda Marga. This Court also
held as under:

"The claim of Ananda Marga as a separate religion was not acceptable in view of the clear
assertion that it was not an institutionalized religion but a religious denomination. Ananda
Margis belong to the Shaivite order and as such they belong to the Hindu religion. Accordingly,
they were not entitled to get the protection of Article 25 of the Constitution of India.

The Courts have the power to determine whether a particular rite or observance is regarded as
essential by the tenets of a particular religion.

Ananda Margi as a religious order is of recent origin and Tandava dance as a part of religious
rite of that order is still more recent. It is doubtful as to whether in such circumstances Tandava
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 arguments 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 place is an essential religious rite to be performed by every Ananda
Margi."

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

6. 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 for permission for taking out
procession. By order dated 25.5.1987, the permission was refused by the Commissioner of
Police, Calcutta. Under Article 32 of the Constitution of India, Writ Petition (Civil) Nos. 1317-18
of 1987 was 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 that has been said by this Court in the judgment in Acharya Jagdishwaranand
Avadhuta etc. Vs. Commissioner of Police, Calcutta amp; Anr. reported in [1984] 1 SCR 447

Petitioners are at liberty to go before the High Court."

7. 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 No. 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 function and festival 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.

8. The respondents based their right to perform Tandava dance in procession and in public
gathering on the basis of the prescription of their Guru Shri Ananda murtiji in the recent fourth
Edition of Carya Carya Part I published in the year 1986. The writ application was heard by a
learned Single Judge who passed an order allowing the writ 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 of India and the Court was powerless to examine as to
whether such prescription of their Guru formed essential and integral part of the religious rite to
be observed by the Ananda Margis. Against the 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 sometime and having considered the decision of the three learned Judges
of this Court in Acharya Jagdishwaranand Avadhuta etc.''s case (supra), was of the view that this
is a matter which requires consideration by a Constitution Bench of this Court. The matter was
placed before the Constitution Bench. The Constitution Bench, by an order dated 4.12.2001,
observed that there is no justification for the hearing of this civil appeal by a Constitution Bench
and it must be placed before a Bench of two learned Judges for final disposal. When the matter
came up before the Division Bench of this Court on 17.1.2002, the Bench expressed their
opinion as follows:

"After hearing the counsel for the parties at length, we are of the opinion that seemingly there is
a contradiction in the order passed by the Division Bench of the Calcutta High Court (impugned
judgment); the three-Judge Bench judgment in Acharya Jagdishwaranand Avadhuta and Ors.
(supra) and the order passed by a two-Judge Bench in Bijoe Emmannuel amp; Ors. (supra). In
the latter case, the two-Judge Bench has explained in judgment of this Court in Acharya
Jagdishwaranand Avadhuta and Ors. (supra) and held that Ananda Margi could claim the
benefit of Article 25(1) having open the question regarding applicability of Article 25 to the
Ananda Margis. The High Court based its decision on the latter judgment and gave the
impugned judgment holding that the order passed by the appellants was violative of Articles 25
and 26 of the Constitution of India.

We feel that the observation made by the two-Judge Bench in Bijoe Emmannuel amp; Ors.
(supra) that Article 25 did not apply to Anand Margis had crept in the latter judgment by some
slip does not appear to be correct. In our view, this Court in its judgment in Acharya
Jagdishwaranand Avadhuta etc. (supra) had reached a definite conclusion that the claim of the
respondents that the action of the appellant was violative of fundamental rights of the
respondents within the meaning of Articles 25 and 26 of the Constitution of India had to be
rejected. It is apparent from the observation made by the Court in para 15 of its order
reproduced in the earlier part of this order.

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 by the Ananda Margis by their Guru after the rendering of the the judgment by this
Court would translate into a practice and the religious rites of the 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.

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

9. As noticed earlier, the dispute stated 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.

10. We heard the arguments of Mr. Tapas Ray, learned senior counsel for the appellants and Mr.
T.R. Andhyarujina, learned senior counsel for the respondents.

11. Learned senior counsel appearing for the respective parties drew or attention to the
pleadings, documents, exhibits marked, the judgments rendered by the High Court and of this
Court on earlier occasions. Both sides have also cited number of judgments in support of their
respective contentions.

12. Mr. Tapas Ray, learned senior counsel appearing for the appellants, submitted that-

a) Tandava dance is not a religious rite or practice essential to the tenets of religious faith of
Ananda Margis and that taking out religious procession 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 of India to perform Tandava dance in public streets or public places on their mere
assertions that their Guru recently prescribed Tandava dance as part of their religious rite;

c) The findings of the Calcutta High Court to the effect that Tandava dance is a part of religious
order of that particular community and that the Police Authorities should allow the Ananda
Margis to perform the Tandava dance in public procession on the occasion of their principal
religious functions mentioned in the writ petitions are hit by the principle of res judicata in view
of the negative decision of this Court on identical issues in Acharya Jagdishwaranand Avadhuta
etc.''s case (supra);

(d) The subsequent order dated 1.12.1987 of this Court in Writ Petition (Civil) No. 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 Jadgishwaranand Avadhuta etc.''s case (supra) has not enabled the High Court to
reopen the issues already conclusively decided by this Court in the above case;

e) In view of the fact that Ananda Margis is not an institutionalised religion by itself and that
they are a religious denomination within the Hindu religion which is the religion they hold, the
Ananda Margis have no fundamental right within the meaning of Article 25 or Article 26 to
perform Tandava dance in 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 of India in the matter of deciding as to what rites and
ceremonies are essential for his followers and whether Court is powerless to determine if such
particular rite or observance is an essential tenet of the religion the followers of Ananda Margi
hold.

g) The respondents also cannot be permitted to carry trident, daggers or knife and/or live
snakes in public procession or otherwise in view of the fact that the same is bound to disturb
public peace ad tranquility 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 specially children thereby provoking public
annoyance.

13. Mr. T.R. Andhyarujina, learned senior counsel, made elaborate submissions in support of the
respondents'' case and cited many decisions.

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

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

16. 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. The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt

2. Sardar Syedna Taher Saifuddin Saheb vs. The State of Bombay [1962](Supp. 2) SCR 496 at
531-532]

3. Seshammal and Others, etc. etc. vs. State of Tamil Nadu

4. Ratial Pannachand Gandhi vs. The State of Bombay and Ors.

5. N. Adithayan vs. Travancore Devaswom Board and Ors.

6. The Durga Committee, Ajmer amp; Anr. vs. Syed Hussain Ali and Ors.

17. In the present case, Anand Murtiji had prescribed a procession on six days with Tandava
dance in the Carya Carya in the fourth edition 1986. This precept is binding on the Ananda
Margis which has not been disputed by the Commissioner of Police that these precepts are
mandatory for the Ananda Margis. [As could be seen from volume-II page 84 para 8 of the
paper book].

18. 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 etc''s case (supra). When the
precepts were recorded in the Carya Carya and made part of the new petition, this Court ordered
that this should be investigated by a fresh writ petition in the High Court which was done by the
Division Bench of the High Court now and held that the precept ws established as part of
Ananda Margis religious belief.

19. 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 emphasized 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 [AIR 1990 Calcutta 336
at 352] and Acharya Jagdishwaranand Avadhuta etc.''s case (supra) which also notes that these
are only ''symbolic'' items.

20. There cane be no question of any ''public order'' being violated by the procession of Ananda
Margis involving 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 Dr. Ram Manohar Lohia vs. State of Bihar and Ors. that every breach
of peace does not lead to public disorder.

21. Learened senior counsel for the respondents relied on the decision of the Constitution Bench
in Himat Lal K. Shah vs. Commissioner of Police, Ahmedabad and Anr. for the proposition that
the right to carry out religious processions in public streets.

22. 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 feature of the Tandava dance is the carrying of a knife, trident and skull
since time immemorial. This has also been noted by the Division Bench of the Calcutta High
Court in Commissioner of Police vs. Acharya Jagdishwaranand [AIR 1991 Calcutta 263 at 270].

23. 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.

24. 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 in 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 of India that this Court itself was persuaded with the earlier
judgment did not finally conclude the matter. This 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 etc.s case (supra) when the precepts were
recorded in the Carya Carya and made part of the new petition under Article 32 of the
Constitution of India, this Court ordered that this should be investigated by the High Court in a
fresh writ petition filed by the respondents, which was done by the High Court and which on
reconsideration of the entire gamut of litigation and the records and of the arguments of the
counsel appearing on either side held that the precept was established as part of Ananda Margis
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
re-agitated or re-determined by the High Court has no force. Since the matter is at large, we are
of the opinion the High Court is right in considering the entire matter afresh and determining

the same. The High Court was competent to consider the question whether the Ananda Margis
can claim the benefit of Article 25(1) of the Constitution of India. Since, in our view, the said
question 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, is right in holding that it
has the jurisdiction to entertain the present writ proceedings.

25. 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.

26. 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 "Nataraja in Art,
Thought and Literature" by C. Sivaramamurti. He would further submit that Ananda Murtiji
was considered by the Ananda Margis as their religious preceptor or guru and any direction
given by him was a mandate which could not be disobeyed. Therefore, the rites and rituals
which would be prescribed by Ananda Murtiji 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.

27. 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 anytheless a matter of religion.

28. Countering the argument, learned senior counsel for the appellants, submitted that the
concept of Tandava dance was not a part of religion but a secular activity and relied upon the
decision of this Court in the Case of Durga Committee, Ajmer amp; Anr. vs. Syed Hussain All
amp; Ors. reported in (supra). The particular passage relied on by learned counsel for the
appellant is as follows:

"In order that the practices in question should be treated as a part of religion they must be
regarded by the said religion as its essential and integral part; otherwise even surely secular
practices which are not an essential or an integral part of religion are apt to be clothed with a
religions form and may make a claim for being treated as religions practices within the meaning
of Art. 26. Similarly even practices though religions may have sprung from merely superstitious
beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless
such practices are found to constitute an essential and integral part of a religion their claim for
the protection under Art. 26 may have to be carefully scrutinized, in other words, the protection
must be confined to such religious practices as are an essential and integral part of it and no
other."

29. This observation of this Court, in our view, runs counter to the observation of Mukherjee, J.
In the Commissioner, Hindu Religious Endowment, Madras vs. Sri Lakshmindra Thirtha
Swamiar or Sri Shirur Mutt (supra). In this context, it is useful to reproduce a passage from the
above judgment which explains the definition of religion in paragraphs 14 and 19 of the
judgment which are-

"We now come to Art. 25 which, as its language indicates, secures to every person, subject to
public order, health and morality, a freedom not only to entertain such religious belief, as may
be approved of by his judgment and conscience, but also to exhibit 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 prescribed 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 part of religion..."

30. In a subsequent decision, namely, His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar
Swami etc. vs. The State of Tamil Nadu [AIR 1972 SC 1586], 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 dismissed as either irrational or superstitious."

31. Mr. Tapas 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. The Tandava dance has to be
performed which are religious in nature. It is stated in Chapter 15 of the Carya Carya that our
social-cum-spiritual functions will be considered part of 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, posters, ornaments
and the weapons used in the dance are said to be symbols of religious significance vide chapter
entitled "The significance of Shivas dance from "Nataraja in "Art, Thought and Literature" by S.
Sivaramamurthi, It is to be noticed that since 1986 Ananda Murtiji has specifically directed the
performance of the Tandava dance in public procession on special occasions. This directive is
contained in the revised version of the Carya Carya. It was placed before us at the time of
hearing. In fact, this writing was not produced before this Court during the hearing of the earlier
writ proceedings and that this Court had no occasion to consider the same. In our view, the
performance of Tandava dance in public procession forms part of the Ananda Margis religion
and is also a matter of religion within the meaning of those articles and that the Ananda Margis
cannot be deprived of their right to practice their religion in the manner prescribed by their
religious preceptor, except on the grounds of public order, morality and health. It is not the case
of the appellants that the 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 do
not contain any reference to public order or morality. However, the appellants, at the time of
hearing of this appeal, tried to improve their case by affidavits which cannot at all be permitted.
The 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 vs. The Chief Election Commissioner [AIR 1978 SC 851].

32. Ananda Marga had already been declared as a religious denomination by this Court vide
judgment dated 20.10.1983 as reported in Acharya Jagdishwaranand Avadhuta etc.''s case
(supra) at para 9 wherein it has been observed as under:

"...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 conductive 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..."

33. 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 of India does not
include sect of religion of Ananda Marga being declared as religious denomination does not
qualify for the same protection as religion in our view is not tenable. The learned Judges of the
Calcutta High Court in their judgment impugned in this appeal has categorically dealt with the
question following the decision exactly on the same point in the case of Shirur Mutt (supra) and
the National Anthem case reported in [AIR 1987 SC 748] and Sri Vankataramana Devaru amp;
Ors. Vs. State of Mysore and Ors. [AIR 1958 SC 255] held that a religious denomination or
organisation enjoys complete complete autonomy in the matter of deciding as to what rights and
ceremonies are essential according to the tenets of the religion they hold and outside authority
has no jurisdiction to interfere with their decision in such matters.

34. 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 Muslim festival of
Muharram is taken out with various deadly weapons as well as Sikh celebrations with sword
fighting display in public, the procession of workers of Bharat Sevasram Sangha (a Social and
not even a religious organisation) are allowed to move on horseback and carrying swords
through the streets. Besides these, the example of Bolana and Gujana festivals in Burdwan,
Birbhum, Murshidabad, Nadia in West Bengal, where in a public dance with severe heads from
corpses is displayed and the procession of monks in Allahabad are examples of religious
tolerance in our country which has a wide variety of traditions and beliefs. The display of
Tandava dance which takes only a few minutes by a very limited number of persons to display
the same compared to other religious festivals. The plea of congested streets is an eye-wash in
that the appellants allows other groups of other hue to move in procession in Calcutta and deny
the Ananda Margis due to prejudice towars 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 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 the chances of rioting
and other criminal offences. In our view, this contention of the appellants has no merits. If one
religious denomination is allowed to carry its religious practice but another religious
denomination is restrained from carrying on religious practice and almost similar religious
practices, the same makes out a clear case of discrimination in violation of the principles of
Article 14 of the Constitution. It was submitted by learned senior counsel for the respondents
that in the procession of the followers of Ananda Margis, each one of them will not carry the
skull and trident or knives of the aforesaid size, but only 5 to 6 members in a procession of at
least 1,000 members would carry the skull and the trident and/or knives to perform the
Tandava Dance which will be of a very limited duration. may be 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 Margis 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.

35. According to Mr. Andhyarujina, a wrong impression is created about the religious
procession by the Ananda Margis as if it consisted of a huge number of violent persons
brandishing knives or tridents and displaying human skull or tridents terrifying the public and
disturbing periodically public order in streets and that the facts are to the contrary. In regard to
this submission, he invited our attention to the conditions under which the procession with
Tandava dance is held by Ananda Margis as under:-

"1. 6 times a year on days of festivals and social functions

2. approximately 1000 members in procession

3. 5 or 6 members carry skulls and trident and/or knives to perform Tandava dance, which is of
1 or 2 minutes duration. This will be repeated at intervals of one mile and is not of continuous
duration;

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 Commission of Police to
maintain peace and discipline when conducting procession and the procession will be taken only
on a specified route or roads"

36. According to him, Tandava Dance in procession is the mandate of Ananda Margis. He
invited our attention to para 14 of the judgment of this Court in Acharya Jagdishwaranand
Avadhuta etc.''s case (supra) in which this Court held that there is no justification in any
writings of Shri Ananda Margis that Tandava dance must be performed in public. On this
finding, this Court held that Tandava dance was not proved to be an essential religious rite to be
performed by every Ananda Margi in procession.

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

38. These written mandatory directions of Anand Murtiji were specifically pleaded by the
Petitioner at page 9-10 para 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 Margis but it does not bind the respondents.

39. The Court rightly observed that the fact that the practice is recently prescribed by Ananda
Murtiji is not a reason for saying does not part of the religious practices and beliefs of the
denomination.

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

41. The Anand Margi 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 of public place. This is because, as held by this Court
in several cases.

42. "Religious practices or performance of acts in pursuance of religious beliefs are as much a

part of religious as faith or belief in religious doctrine. No outside authority has any right to say
that they are not essential part of religion and it is not open to the secular authority of the State
of restrict or prohibit them in any manner they like..." Ratilal Pannachand Gandhi vs. State of
Bombay, (supra) citing with approval Daver, J. In Jamshedji Soonabai, AIR 33 Bom. 122,
Commnr. HRE, Madras vs. Lakshmandra, Sardar Syedna vs. State of Bombay. In Venkatarama
Devaru''s case (supra), this Court has held that the right under Article 26(b) of a denomination
to manage its own affairs in matters of religion includes even practices which are regarded as
part of religion.

43. The exercise of the freedom to act and practice in pursuance of religious beliefs is as much
important as the freedom of believing in a religion. In fact to persons believing in religious faith,
there are some forms of practicing the religion by outward actions which are as much part of
religion is the faith itself. The freedom to act and practice can be subject to regulations. In our
Constitution subject to public order health and morality and to other provisions in Part III of the
Constitution. However, in every case the power of regulation must be so exercised with the
consciousness that the subject of regulation is a fundamental right of religion, and as not to
unduly infringe the protection given by the Constitution. Further in the exercise of the power to
regulate, the authorities cannot sit in judgment over the professed 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 vs. State of Connecticut (1939 84 L.Ed. 1213-1218, United
States vs. Ballard, 1943 88 L.Ed. 1148, 1153, 1154).

44. I shall now consider the right of the Ananda Margis to religious procession. In Parthasaradi
Ayyangar amp; Ors. vs. Chinakrishna Ayyangar, ILR 5 Madras 304 Turner C.J. said.

45. "In India, person of whatever sect are entitled to conduct religious procession through public
streets so long as they do not interfere with the ordinary use of such streets by the public and
subject to such directions as the Magistrates may lawfully give to prevent obstruction of
thorough fare or breaches of public place."

46. "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."

47. These observations were quoted with approval by this Court in Ghulam Abbas vs. State of
U.P. 1982 (1) SCR 1077 at 1130-1133. It was observed that the authorities should not in face of
such religion rights prohibit religious procession on the "facile ground of public peace and
tranquillity" but adopted a positive approach to protect fundamental rights under Articles 25
and 26 of the Constitution.

48. Moreover "public order" has a larger connotation than "law and order". Contravention of
law to effect public order must affect the community or the public at large. A mere disturbance
of law and order leading to disorder is not one which affects "public order". [See R.M. Lohia vs.
State of Bihar, (supra)].

49. 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.

50. The Police Commissioner answers the charge of discrimination by stating that "activities of
Anand Margis cannot come within the scope of religious functions or practices as compared to
well established practices festival of Muslims and Sikhs". It is not for the Police Commissioner to
give his disapproval to practice of a particular sect which are in his opinion net 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 US vs. Ballard, 88 L.Ed. 1148).

51. 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.

52. Whilst our Constitution is neutral in religion, it at the same time, is benign and sympathetic
of all religious creeds however unacceptable they may be in the eyes of the non-believers.
Articles 25 and 26 embody a tolerance to all religions. This Court has rightly said:

"Our tradition teaches tolerance. Our philosophy preaches tolerance; Our Constitution practices
tolerance; Let us not dilute it.

It is in that spirit of tolerance "that creeds like the Petitioner with their practices must be
accepted in our society."

53. 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 its Court (Seven Judges) in Shirur Mutt''s
case (supra) as extracted in paras (supra). This is the must essential part of the fundamental
right of freedom of religion. This Court in subsequent cases have followed the proposition in
Shirur Mutt''s case (supra), Sardar Syedna Tahe Saifuddin Saheb vs. State of Bombay (Five
Judges) and in Seshanmmal vs. State of Tamil Nadu, (five Judges) at page 21.

54. In the case of Ratilal Pannachand Gandhi vs. State of Bombay (supra), this Court
emphasized that "No outside authority has any right to say that these are not essential parts of
religion and it is not open to a secular authority of the State of restrict and prohibit them in any
manner they like under the guise of administering the trust estate." This Court quoted with
approval Jamshedji vs. Soonabai (supra) where the Bombay High Court held, "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 the advancement of his religion and the welfare of his
community or mankind."

55. As late as 2002, this Court has reiterated this in N. Adithayan vs. Travancore Devaswom
Board [(2002) 8 SCC 106 at 123]. This Court observed that "as to what really constitutes an
essential part of religion or religious practice has to be decided by the Courts with reference to
the doctrine of a particular religion or practices regarded as parts of religion."

56. The obiter of Gajandragadkar, J. in Durga Committee, Ajmer vs. Syed Hussain All (supra) to
the effect that the Court may have carefully scrutinized the practices to find out whether they
constitute an essential or integral part of religion is not in line with the above decisions
including that of seven Judges Bench in the case of Shirur Mutt (supra).

57. Seervai in Constitutional Law of India (4th Edition), Volume-II at page 1268 has criticized
this as obiter as inconsistent with earlier decisions of this Court cited above.

58. 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.

59. It is brought to our notice that the following observation in Acharya Jagdishwaranand
Avadhuta etc.''s case (supra) is not correct in law:-

"Mr. Tarkunde has claimed protection of Article 25 of the Constitution but in view of our finding
that Anandamarga is not a separate religion, application of Article 25 is not attracted".

As rightly stated by this Court in Bijoe Emmanuel''s case. This sentence appears to have crept
into the judgment by some slip.

Article 25(1) states that all persons are entitled to freedom of religion. Hence every member of a
religious denomination is entitled to the fundamental right of freedom of religion under Article
25. It necessarily follows that every sect or denomination is entitled to freedom of religion under
Article 25. It is undisputed that under Article 26(b) a denomination is entitled to manage its
own affairs is matters of religion.

The above observation in Jagdishwaranand''s case is also contrary to the interpretation of
Article 25(1) given by this Court in the Constitution Bench of 7 Judges in Shirur Mutt case where
the Court observes that "institutions as such cannot practice or 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".

60. In this context, In can also usefully refer to the decision of this Court in Ratilal Panachand
Gandhi and Ors. vs. State of Bombay and Ors. (supra).

61. I am, therefore, of the opinion that the observation of the learned Judges in the referring
order dated 17.1.2002 are not correct.

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

63. Article 25(1) guarantees to every person freedom of conscience and the right freely to
profess, practice and propagate any religion. It may be noted that this right is not confined to
citizens alone, but covers all persons residing in India. But the right to freedom of religion
guaranteed by this Article is 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.

64. 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 freely to
profess, practice and propagate religion save those imposed under the police power of the State
and the other provisions of Part II of the Constitution. This means the right to worship god
according to the dictates of one''s conscience. Man''s relation to his God is made no concern for

the State. Freedom of conscience and religious belief cannot, 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.

65. 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 activity which are prejudicial to public interest. That apart, any activity in furtherance
of religious belief must be subordinate to the criminal laws of the country. It must be
remembered crime will not become less odious because sanctioned by what a particular sect
may designate as religious. Thus polygamy or bigamy may be prohibited or made a ground of
disqualification for the exercise of political rights, notwithstanding the fact that is in accordance
with the creed of a religious body.

66. 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 individual and the interest of the society, the interest of the
society must prevail. In an organized society there cannot be any individual right which is
injurious to the community as a whole. 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 religions freedom
contained in Article 25. While one limb guarantees the right the other limb incorporates
restrictions on the exercise of the right so that they may not conflict with public welfare or
morality.

Jahova Witnesses and Ananda Margis

67. The principle of secularism enshrined in the Constitution touched its high watermark in the
Jehovah''s witnesses case, wherein this Court held that children of the Jehovah''s witnesses faith
need not stand to sing the National Anthem at school assemblies. According to the Court there is
no provision of law which obliges anyone to sing the National Anthem, nor is it disrespectful to
the National Anthem it 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 they did not join the singing of National Anthem,
though they do stand up respectfully, when the Anthem is sung would be violative of Article
1991) and Article 2591) 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 P.M.A. Metropolitan amp; Ors. etc. etc. vs. Moran Mar Marthoma amp; Anr. etc. etc., AIR
1995 SC 2001 (ex-communication case), a sharply divided Court upheld the right of the leaders
of faith to ex-communicate ''fallen'' believers for religious reasons-no doubt leaving it to the
Courts to determine whether an ex-communicatory reason was religious or not. The principle of
ex-communication is that the collective right will prevail over individual right. However, in
1985, this Court recognized the power of ex-communication as a measure of discipline. In the
case of Mohd. Hanif Quaresi amp; Ors. vs. The State of Bihar, [1959 SCR 629, Cow Slaughter
case] this Court had struck a balance between the fundamental rights of butchers to occupation
and slaughtering of cows an activity claimed to be 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.

68. Here, the Court has assumed the role of the theologian after making a roving enquiry. While
the decision is criticized on the ground that, once this door is opened, there is no limit to which
the Court cannot go, the answer is that the power of judicial review as a basic structure is vested
with the Court and if some one has to be trusted, let it be the Courts even in matters of faith.
This Court, as stated earlier, considered this question whether performance of Tandava dance is
a religious rite or practice essential to the tenets of the religious faith of the Ananda Margis. The
Court while upholding Ananda Marga satisfies all the three conditions envisaged by Article 26 of
the Constitution of India and as such a religious denomination negatived their claims to perform
Tandava Dance in public (1. It is a collection of individuals who have a system of beliefs which
they regards as conducive to their spiritual well-being; 2. they have a common organization, and
3 the collection of these individuals has distinctive name). The specific case of the petitioners is
that Shri Ananda Murti introduced Tandava as a part of religious rites of 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 mts. According to them. Tandava is a custom among it sect members and
it is a customary performance and its origin is over thousands of years old. Repelling the
contention the Court held even conceding that Tandava dance has been prescribed as a religious
rite for the followers of Ananda Marga, it does not follow as a necessary corollary that Tandava

Dance to be performed in the public is a matter of religious rite. The Court went on to observe
that there is nothing that Tandava dance must be performed in public. In the result, this Court
rejected the claim of Ananda Margis to perform Tandava Dance in public streets.

69. 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 "Moharrum" Festival and persons participating in such processions beat their
chest with hands and chains and inflict injuries on them and the same has been permitted as a
religious practice of that community.

70. 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,
Subramanya a peacock, and so on. The idea is only to emphasize the Kinship with animals. Trees
have the divinity Vanadevata. War is presided over by the Goddess Chammundi 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 emphasize the one ultimate Reality.

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

72. 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, Coach or Skull is an integral and essential part of religious
practice and the same is protected under Article 25 of the Constitution of India. However, the
same is subject to the right of the State to interfere with the said practice of carrying Trishul,
Conch or Skull if such procession creates Law and Order problems requiring intervention of
concerned authorities who are entrusted with the duly of maintaining Law and Order.

What is Religion

73. 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 unknown
world. People living in Society have to follow some sort of religion. It is a social Institution and
Society accepts religion in in a form which it can easily practice. George Barnard Shaw stated.
"There is nothing that people do not believe if only it be presented to them as Science and
nothing they will not disbelieve if it is presented to them as Religion." Essentially, Religion is
based on "Faith" Some critics say that Religion interfered with Science and Faith. They say that
religion led to the growth of blind faith, magic, sorcery, human sacrifices etc. No doubt, history
of religion shows some indications in this direction but both Science and Religion believe in
faith. Faith in Religion influences the temperament and attitude of the thinker. Ancient
civilization viz., the Indus Valley Civilization shows faith of people in Siva and Sakthi. The
period of Indus Valley Civilization was fundamental religion and was as old as at least Ehyptian
and Mesapetomiah Culture. People worship Siva and the Trisul (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 practiced on the strong belief that they were
abodes of spirits, good or evil. Modern Hinduism is to some extent includes Indus Valley
Civilization Culture and religious faith. Lord Siva is worshipped in the form of Linga. Many
symbols have been used in Hindu Literature. Different kinds of symbols and images have
different sanctity. Brading of chest, arms and other parts of body represent to 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.

74. The expression of ''Religion'' has not been defined in the Constitution and it is incapable of
specific and precise definition. Article 25 of the Constitution of India guarantees to every
person, freedom of conscience and right freely to profess, practice end 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 of practice a particular faith, to preach and to profess it. Mode of
worship is integral part of religion. Forms and observance of religion may extend to matters of
Food and Dress. An act done in furtherance to religion is protected. A person believing in a
particular religion has to express his belief in such acts which he thinks proper and to propagate
his religion. It is settled law that protection under Articles 25 and 26 of the Constitution of India
extend guarantee for rituals and rituals and observances, ceremonies and modes of worship
which form part and parcel of religion. Practice becomes part of religion only if such practice is
found to be essential and integral part. It is only those practices which are integral part of
religion that are protected. What 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
practicing that particular practice is 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.

75. It is not uncommon to find that those delve deep into scriptures to ascertain the character
and status of a particular practice. It has been authoritatively laid down that Cow Sacrifice is not
an obligatory over-act for a Muslim to exhibit his religious belief. No fundamental Right can be
claimed to insist on slaughter of a healthy cow on a Bakrid Day. Performance of "Sharadha" and
offering of "Pinda" to ancestors are held to be an integral part of Hindu Religion and religious
practice. Carrying "Trishul" or "Trident" 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 practice which is part of their religion which they wanted to propagate by carrying
symbols of their religions such as Trishul, Conch etc. If the conscience of a particular
community has treated a particular practice as an integral or essential part of religion, the same
is protected by Articles 25 and 26 of the Constitution of India.

76. Therefore, Anand Margis have right to take a procession in public places are obtaining
necessary permission from the concerned authorities and they are also entitled to carry Trishul
or Trident, Conch or Skull so long as such procession is peaceful and does not offend the
religious sentiments of other people who equally enjoy fundamental right to exercise their
religious freedom. An Anand Margi is entitled to transmit or spread religion by taking out
procession in public places and also carry Trishul, Conch or Skull. However, any religious right
is subject to public order. The State has got ample powers to regulate the secular activities
associated with religious practices. Religious activities are protected under Article 25 of the
Constitution of India. No doubt, such religious freedom is subject to health and subject to laws
made for social welfare. Every person has got right to follow, practice and propagate his religion.

77. 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 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.

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

1. The Commissioner of police may prescribe the route;

2. Regulation:

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

(ii) Loud speakers shall not be issued.

(ii) 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 one side of the road by
keeping other side for transport.

(viii) Crackers are prohibited.

(ix) They should not spray colour powders

79. The instructions of police officers and other regulations as above should be followed."

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

81. 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.

Held:

No merit in appeal.