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CASE NO.:

Appeal (civil) 6230 of 1990

PETITIONER:

The Commissioner of Police & Ors.

RESPONDENT:

Acharya Jagdishwarananda Avadhuta & Anr.

DATE OF JUDGMENT: 11/03/2004

BENCH:

Dr. AR. Lakshmanan

JUDGMENT:

J U D G M E N T

Dr. AR. Lakshmanan, J.

This appeal stems from the judgment and order dated 08.11.1990 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 07.05.1990

passed by the learned Single Judge of the said Court allowing the writ petition of the

respondents herein with a declaration that "Tandava dance as prescribed for the

followers of Ananda Margis is an essential and integral part of the religion of the said

religious denomination and that they have a right to perform such a dance in public on

the occasions prescribed in this behalf subject to the restrictions under Articles 25 and

26 of the Constitution of India and the Police Authorities have no jurisdiction to impose

ban on such a dance."

This 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:

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 day time and fire mashal's or

damroo during night time. Tandava dance lasts for a few minutes where two or three

persons dance by lifting one leg to the level of chest and then bringing it down and

lifting the other. Ananda Murtiji by incorporating Tandava dance in the system of beliefs

of Ananda Marga wanted to bring it to its original glory. Tandava dance symbolises 'life'

and `death'. The skull represents death and the knife represents life. The Ananda

Margis are followers of Shaivite order within 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.

The respondents took out a procession with human skulls, daggers, trident etc.

on 10.08.1979. According to the police, the procession was to take out violating

prohibitory ban in regard to carrying of those articles in processions in public streets. I

n

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 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

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General Secretary of the Ananda Marga in a Writ Petition No. 903 of 1980 before the

High Court of Calcutta. The Calcutta High Court, by order dated 23.09.1980, rejected

the said writ petition for the reasons recorded therein. Again the Commissioner of

Police, Calcutta made a fresh order under Section 144 of the Code of Criminal

Procedure, 1973 on 29.03.1982 wherein the same restraints as mentioned in the earlier

order were 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 Wri

t

Petition Nos. 6890 and 7204 of 1982.

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 institutionalised

religion but a religious denomination. Ananda Margis belong to the Shaivite

order and as such they belong to the Hindu religion. Accordingly, they were

not entitled to get the protection of Article 25 of the Constitution of India.

The Courts have the power to determine whether a particular 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 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 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."

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

07.05.1987, the respondents made an application to the Commissioner of Police,

Calcutta seeking for permission for taking out procession. By order dated 25.05.1987,

the permission was refused by the Commissioner of Police, Calcutta. Under Article 32

of the Constitution of India, Writ Petition (Civil) Nos. 1317-18 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 & Anr. reported in [1984] 1 SCR 447.

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

Pursuant to the aforesaid liberty granted by this Court, a writ application was

moved by the respondents praying for quashing the orders dated 20.05.1987 and

27.05.1987 of appellant No.1 - Commissioner of Police and also for a directive upon

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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.

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

08.11.1990 dismissing the stay application and the appeal and affirming the order of

the learned Single Judge of the High Court of Calcutta. Aggrieved by the impugned

judgment, the appellants have approached this Court by way of Special Leave Petition

No. 16233 of 1990. 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 04.12.2001, 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 17.01.2002, the Bench expressed their

opinion as follows:

"After hearing the counsel for the parties at length, we are of the

opinion that seemingly there is a contradiction in the order passed by the

Division Bench of the Calcutta High Court (impugned judgment); the three-

Judge Bench judgment in Acharya Jagdishwaranand Avadhuta & Ors.

(supra) and the order passed by a two-Judge Bench in Bijoe Emmannuel

& Ors. (supra). In the latter case, the two-Judge Bench has explained in

judgment of this Court in Acharya Jagdishwaranand Avadhuta & 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 & Ors. (supra) that Article 25 did not apply to Ananda Margis

had crept in the latter judgment by some slip does not appear to be correct.

In our view, this Court in its judgment in Acharya Jagdishwaranand

Avadhuta etc. (supra) had reached a definite conclusion that the claim of

the respondents 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.

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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 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. Accordingly, we request

the learned Chief Justice to place this matter before a Bench of three

learned Judges."

As noticed earlier, the dispute started in the year 1979 between the Police

Authorities - the appellants herein and the respondents' organisation and the matter

was pending before one forum or 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.

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.

Learned senior counsel appearing for the respective parties drew our attention to

the pleadings, documents, exhibits marked, the judgments rendered by the High Court

and of this Court on earlier occasions. Both sides have also cited number of judgments

in support of their respective contentions.

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

that -

a) Tandava dance is not a religious rite or practice essential to the tenets of

religious faith of Ananda Margis and that taking out religious processions

with Tandava dance is not an essential 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 01.12.1987 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

Jagdishwaranand Avadhuta etc.'s case (supra) has not enabled the

High Court to reopen the issues already conclusively decided by this

Court in the above case;

e) In view of the fact that Ananda Margis is not an institutionalised religion

by itself and that they are a religious denomination within the Hindu

religion which is the religion they hold, the Ananda Margis have no

fundamental right within the meaning of Article 25 or Article 26 to perform

Tandava dance in pubic streets and 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.

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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 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

specially children thereby provoking public annoyance.

Mr. T.R. Andhyarujina, learned senior counsel, made elaborate submissions in

support of the respondents' case and cited many decisions.

He submitted that the issue raised in the present appeal had been raised by way

of an application under Article 32 of the Constitution of India before this Court and this

Court having directed the High Court to dispose of the matter keeping in view the earlier

judgments of this Court, the matter is at large.

The action of the appellants in refusing the Ananda Margis the right to perform

the Tandava dance was violative of Articles 15, 19, 25 and 26 of the Constitution of

India.

In the present case, what constitutes an essential part of a religion is primarily to

be ascertained with reference to the doctrine of that religion itself and the Court cannot

say that a belief or practice is not part of religion. In support of this contention, he re

lied

on the following judgments:-

1. The Commissioner, Hindu Religious Endowments, Madras vs. Sri

Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954] SCR 1005 at

1028]

2. Sardar Syedna Taher Saifuddin Saheb vs. The tState of Bombay

[1962] (Supp.2) SCR 496 at 531-532]

3. Seshammal and Others, etc. etc. vs. State of Tamil Nadu [1972] (2)

SCC 11]

4. Ratilal Pannachand Gandhi vs.The State of Bombay & Ors. [1954]

SCR 1055]

5. N. Adithayan vs. Travancore Devaswom Board & Ors. [2002] (8) SCC

106]

6. The Durga Committee, Ajmer & Anr. vs. Syed Hussain Ali & Ors.

[1962] (1) SCR 383 at 412

In the present case, Anand Murtiji had prescribed a procession on six days with

Tandava dance in the Carya Carya in the fourth edition 1986. This precept is binding

on the Ananda Margis which has not been disputed by the Commissioner of Police that

these precepts are mandatory for the Ananda Margis. [As could be seen from Volume-

II page 84 para 8 of the paper book].

It is significant that this Court in its order of 01.12.1987 did not dismiss the fresh

writ petition filed after its decision in Acharya Jagdishwaranand Avadhuta etc.'s case

(supra). When the precepts were recorded in the Carya Carya and made part of the

new petition, this Court ordered that this should be investigated by a fresh writ petition

in the High Court which was done by the Division Bench of the High Court now and held

that the precept was established as part of Ananda Margis religious belief.

It is pertinent to mention that carrying a small knife not exceeding 3" or 4" in size

and a skull as symbolic items for the purpose of performing religious rites is not

prohibited by any law. Besides, it must be emphasised that a knife with a blade shorter

than 10.16 cm in length is not an "arm" under Section 2(c) of the Arms Act. Learned

senior counsel cited [AIR 1990 Calcutta 336 at 352] and Acharya Jagdishwaranand

Avadhuta etc.'s case (supra) which also notes that these are only 'symbolic' items.

There can be no question of any 'public order' being violated by the procession

of Ananda Margis involving in the Tandava dance. The concept of 'public order' which

is a permissible restriction under Article 25(1) needs to be distinguished from the

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connotation 'law and order'. As stated by this Court in Dr. Ram Manohar Lohia vs.

State of Bihar & Ors. [1966] (1) SCR 709 at 745] that every breach of peace does

not lead to public disorder.

Learned senior counsel for the respondents relied on the decision of the

Constitution Bench in Himat Lal K. vs. Commissioner of Police, Ahmedabad & Anr.

[1973] (2) SCR 266] for the proposition that the right to carry out religious processions

in public streets.

It has been stated by the Commissioner of Police that if Ananda Margis do not

carry a knife, trident or skull but only perform the Tandava dance in 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 Jagdishwaranad [AIR 1991 Calcutta 263 at 270[.

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.

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 of India 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 01.12.1987 did not dismiss the fresh writ petition filed after its decision in

Acharya Jagdishwaranand Avadhuta etc.'s case (supra) when the precepts 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 reagitated or redetermined by the

High Court has no force. Since the matter is at large, we are of the opinion the High

Court is right in considering the entire matter afresh and 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 sa

id

question is still open for reconsideration. This apart, this Court in arriving at its findi

ng

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.

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.

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

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"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 su

ch

directives could continue to be given until his death.

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.

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 & Anr.

vs. Syed Hussain Ali & 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 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."

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 of Sri Shirur Mutt (supra). In this context, it is useful

to reproduce a passage from the above judgment which explains the definition of

religion in paragraphs 14 and 19 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 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..."

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 either irrational or

superstitious."

Mr. Tapas Ray again submitted that the directives regarding the performance of

Tandava dance was contained in Carya Carya under the 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.

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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 th

e

Hindu religion which is said to represent the threefold processes of creation,

preservation and destruction. The rhythm, postures, ornaments and the weapons used

in the dance are said to be symbols of religious significance vide chapter entitled "The

significance of Sivas dance from "Nataraja in "Art, Thought and Literature" by S.

Sivarama murthi. It is to be noticed that 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. Granting to have 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 affidavit

s

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.

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

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..."

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 Venkataramana Devaru & Ors. Vs. State

of Mysore & Ors., [AIR 1958 SC 255] held that a religious denomination or

organisation enjoys complete autonomy in the matter of deciding as to what rights and

ceremonies are essential according to the tenets of the religion they hold and outside

authority has no jurisdiction to interfere with their decision in such matters.

It was argued on behalf of the respondents that the Ananda Marga which has

been declared as a religion by this Court has been discriminated and singled out by the

West Bengal Government for its ideological differences as its philosophy is based on

spirituality. Several instances were pointed out by the respondents. Particulars were

also furnished by the respondents in their writ petition in this regard. According to the

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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 Gajana festivals in Burdwan, Birbhum, Murshidabad, Nadia

in West Bengal, wherein a public dance with severe heads from corpses is displayed

and the procession of monks in Allahabad are examples of religious tolerance in our

country which has a wide variety of traditions and beliefs. The display of Tandava

dance which takes only a few minutes by a very limited number of persons to display

the same compared to other religious festivals. The plea of congested streets is an

eye-wash in that the appellants allows other groups of other hue to move in procession

in Calcutta and deny the Ananda Margis due to prejudice towards Ananda Marga and

its philosophy. This contention was denied by learned counsel for the appellants stating

that if the respondents are allowed to perform the dance on public roads while in

procession which is offensive 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.

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 organizers of the procession have given undertaking to the Commissioner

of Police to maintain peace and discipline when conducting procession and the

procession will be taken only on a specified route or roads"

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

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procession.

The tenets of the Ananda Margi are both oral and written as in the case of many

religions. The fact that there were no writings shown to the Court that Tandava dance

is to be performed in public, did not negative the existence of such precepts by the

Anand Murthiji. As in the case of many religious any of the Anand Murthiji's precepts

are a matter of oral prescriptions. However, in the 1986 edition of Carya Carya specific

mention was made by Anand Murthiji of the requirement of Tandava dance in

procession on special functions and festivals.

These written mandatory directions of Anand Murtiji were specifically 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.

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.

I shall now consider whether Ananda Margis have the fundamental right under

Articles 25 and 26 of the Constitution of India.

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 or public place. This is

because, as held by this Court in several cases.

"Religious practices or performance of acts in pursuance of religious beliefs are

as much a part of religious as faith or belief in religious doctrine. No outside authority

has any right to say that they are not essential part of religion and it is not open to the

secular authority of the State to restrict or prohibit them in any manner they like....."

Ratilal Pannachand Gandhi vs. State of Bombay,(supra) citing with approval Daver,

J. in Jamshedji Soonabai, AIR 33 Bom. 122, Commnr. HRE, Madras vs.

Lakshmandra 1954 SCR 1006 at 1021-1022, 1025, Sardar Syedna vs. State of

Bombay 1962 suppl (2) SCR 496 at 531-532. In Venkatarama Devaru's case

(supra), this Court has held that the right under Article 26(b) of a denomination to

manage its own affairs in matters of religion includes even practices which are regarded

as part of religion.

The exercise of the freedom to act and practice in pursuance of religious beliefs

is as much important as the freedom of believing in a religion. In fact to persons

believing in religious faith, there are some forms of practicing the religion by outward

actions which are as much part of religion is the faith itself. The freedom to act and

practice can be subject to regulations. In our Constitution subject to public order health

and morality 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).

I shall now consider the right of the Ananda Margis to religious procession. In

Parthasaradi Ayyangar & Ors. vs. Chinakrishna Ayyangar, ILR 5 Madras 304

Turner C.J. said,

"In India, person of whatever sect are entitled to conduct religious procession

through public streets so long as they do not interfere with the ordinary use of such

streets by the public and subject to such directions as the Magistrates may lawfully give

to prevent obstruction of thorough fare or breaches of public peace."

"The power to suspend is extraordinary and the Magistrate should resort to it

only when he is satisfied that other powers are insufficient. This authority of the

Magistrate should be exercised in defence of rights rather than in their suspension."

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 adopt a positive approach to protect

fundamental rights under Articles 25 and 26 of the Constitution.

Moreover "public order" has a larger connotation than "law and order".

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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)).

Similar processions by other communities even with use of swords e.g. Sikhs,

Muslims and Bharat Sevashram Sanghs have been permitted by the Commissioner of

Police.

The Police Commissioner answers the charge of 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 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 freedo

m

in the Constitution(see US vs. Ballard, 88 L.Ed.1148).

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.

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".

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 o

f

that religion itself and the Court cannot say that a belief or practice is not part of

religion. This proposition was authoritatively laid down by the Constitution Bench of this

Court (Seven Judges) in Shirur Mutt's case (supra) as extracted in paras (supra).

This is the most essential part of the fundamental right of freedom of religion. This

Court in subsequent cases have followed the proposition in Shirur Mutt's case

(supra), Sardar Syedna Tahe Saifuddin Saheb vs. State of Bombay (Five Judges)

1962 (Suppl) SCR 496 at 531-532 & in Seshanmmal vs. State of Tamil Nadu, 1972

(2) SCC 11 (five Judges) at page 21.

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 to restri

ct

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."

As late as 2002, this Court has reiterated this in N. Adithayan vs. Tranvancore

Devaswom Board [(2002) 8 SCC 106 at 123]. This Court observed that "as to what

really constitutes an essential part of religion or religious practice has to be decided by

the Courts with reference to the doctrine of a particular religion or practices regarded as

parts of religion."

The obiter of Gajendragadkar, J. in Durga Committee, Ajmer vs. Syed

Hussain Ali (supra) to the effect that the Court may have carefully scrutinized the

practices to find out whether they constitute an essential or integral part of religion is n

ot

in line with the above decisions including that of seven Judges Bench in the case of

Shirur Mutt (supra).

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.

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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.

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 (1986 (6)

SCC 615 at 631. 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 in 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".

In this context, I can also usefully refer to the decision of this Court in Ratilal

Panachand Gandhi & Ors. Vs. State of Bombay & Ors. (supra).

I am, therefore, of the opinion that the observation of the learned Judges in the

referring order dated 17.01.2002 are not correct.

I have given my thoughtful consideration to the important questions of law posed

for our consideration.

Article 25(1) guarantees to every person freedom of conscience and the right

freely to profess, practice and propagate any religion. It may be noted that this right is

not confined to citizens alone, but covers all persons residing in India. But the right to

freedom of religion guaranteed by this Article is 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 nonreligious activity associated with religious

practice;

4. Social welfare and reform &

5. Throwing open Hindu religious institutions of public

character to all classes of Hindus.

The full concept and scope of religious freedom is that there are no 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.

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

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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.

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. 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 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

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 up to sing the National Anthem at school

assemblies. According to the Court there is no provision of law which obliges anyone to

sing the National Anthem, nor is it disrespectful to the National Anthem if a person who

stands up respectfully when the National anthem is sung does not join the singing. It is

true that the constitution enjoins a duty on every citizen to respect the National Flag and

National 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 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 P.M.A. Metropolitan & Ors. etc.etc. vs. Moran Mar

Marthoma & Anr. etc. etc., AIR 1995 SC 2001 (ex-communication case), a sharply

divided Court upheld the right of the leaders of faith to ex-communicate 'fallen' believers

for religious reasons-no doubt leaving it to the Courts to determine whether an ex-

communicatory reason was religious or not. The principle of ex-communication is that

the collective right will prevail over individual right. However, in 1995, this Court

recognized the power of ex-communication as a measure of discipline. In the case of

Mohd. Hanif Quareshi & 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.

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

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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 Anand Margis in 1966. What is Tandava Dance? It lasts for a

few minutes, where two or three persons dance by lifting one leg to the level of the

chest, bringing it down and lifting the other. When the Ananda Margis greet their

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.

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.

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 emphasize 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 emphasize the one ultimate Reality.

Reading and reciting old scriptures, for instance, Ramayana or Quran or Bible or

Gurur Granth Sahib is as much a part of religion as offering food to deity by a Hindu or

bathing the idol or dressing him and going to a temple, mosque, church or gurudwara...

The authorities concerned can step in and take preventive measures in the

interest of maintenance of Law and Order if such religious 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 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 duty of maintaining Law and Order.

What is Religion

Religion is a social system in the name of God laying down the Code of Conduct

for the people in Society. Religion is a way of life in India and it is an unending

discovery into unknown world. People living in Society have to follow some sort of

religion. It is a social Institution and Society accepts religion in a form which it can

easily practice. George Barnard Shaw stated, "There is nothing that people do not

believe if only it be presented to them as Science and nothing they will not disbelieve if

it is presented to them 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 Cultute. People worship Siva and the Trishul

(Trident), the emblem of Siva which was engraved on several seals. People also

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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.

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

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 of practice a

particular faith, to preach and to profess it. Mode of worship is integral part of religion

.

Forms and observances of religion may extend to matters of Food and Dress. An act

done in furtherance to religion is protected. A person believing in a particular religion

has to express his belief in such acts which he thinks proper and to propagate his

religion. It is settled law that protection under 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.

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 mrely

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.

Therefore, Anand Margis have right to take a procession in public places after

obtaining necessary permission from the concerned authorities and they are also

entitled to carry Trishul or Trident, Conch or Skull so long as such procession is

peaceful and does not offend the religious sentiments 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.

The Commissioner has got power to regulate assemblies, meetings and

processions in public places, etc. It specifically provides that he is entitled to prescrib

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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.

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

Tandva dance with 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 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

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."

For the foregoing reasons, I am of the opinion that the appeal filed by the

appellats has no merits and is, therefore, dismissed.

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

Since the 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.