# COMMISSIONER OF POLICE AND ORS v. ACHARYA JAGADISHWARANANDA AVADHUTA AND ANR

- **Citation:** [2004] 2 S.C.R. 1019
- **Court:** Supreme Court of India
- **Decided:** 2004-03-11
- **Case number:** Civil Appeal No. 6230 of 1990
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/commissioner-of-police-and-ors-v-acharya-jagadishwarananda-avadhuta-and-anr-19882
- **Pages:** 42

## Headnote

--
COMMISSIONER OF POLICE AND ORS.
v.
ACHARYA JAGADISHWARANANDA AVADHUTA AND ANR.
MARCH 11, 2004
[S. RAJENDRA BABU, DR. AR. LAKSHMANAN AND G.P. MATHUR, JJ.] B
Constitution of India-Articles 25 and 26-Right M profess religionMeaning of-Held, right extends to rituals, observances, ceremonies and modes
of worship which are essential or integral part of the religion-Essential or
integral part-Test for-Held, if taking away the part/practice results in C
fundamental change in character of the religion/belief, it is an essential/integral
part/practice-Performance ofTandava dance in public by Ananda MargisHeld, not an essential/integral part/practice.
The Ananda Marg is a religious sect within Hindu religion founded
in 1955. Performance ofTandava dance as a religious rite for the Ananda D
Margis was introduced around 1966 but there was no such written
prescription for such dance in Carya Carya, the book containing the
relevant doctrines of Ananda Margis. The respondent sought permission
from the appellant to take out a public procession performing Tandava
dance with skulls, daggers, trident, snakes etc. The appellant refused to E
grant permission. The order of the appellant was challenged by the
respondent by way of a writ petition before the Supreme Court under
Article 32 of the Constitution of India contending that order passed by
the appellant was violative of rights of the respondent guaranteed under
Article 25 and 26 of the Constitution of India. The writ petition filed by
the respondent was dismissed by the Court by its judgment in Acharya F
Jagdishwarananda Avadhuta etc. v. Commissioner of Police, Calcutta and
Anr., (1984] 1 SCR 447 holding that the performance of Tandava dance
in public was of a more recent origin than the origin of the sect itself and
therefore, it cannot be said that the rite was an essential religious rite of
the sect. The Court further observed that even though Tandava dance may
be prescribed as a religious rite, there is no prescription for performing G
the dance in public. The Court did not find any justification for the claim
that Tandava dance should be performed in public in the religious books
of the denomination.
After the judgment, the founder of the denomination, Shri Ananda
1019
II
1020
SUPREME COURT REPORTS
[2004] 2 S.C.R.
A
Murtiji, introduced the prescription of performance of Tandava dance in
public in the 1986 edition of Carya Carya. The respondent again applied
for permission to take out a procession. Permission was refused by the
appellant in terms of judgment of the Court in 1charya Jagdishwarananda
Avadhuta 's case. Thereafter, the respondent filed another writ petition
B under Article 32 of the Constitution of India before the Court. The writ
petition was disposed of observing that the case should be examined by
the High Court keeping in view the judgment of the Court in Acharya
Jagdishwarananda Avadhuta 's case.
The respondent thereafter filed a writ petition before the High Court
challenging the order of the appellant. The Single Judge allowed the writ
C petition. Upon appeal by the appellant, the Division Bench confirmed the
findings and order of the Single Judge.
The appellant filed appeal by way of special leave petition before the
Court. A Division Bench of the Court was of the opinion that while in
Acharya Jagdishwarananda Avadhuta's case, the Court had observed that
D Ananda Marg was not a separate religion and therefore, protection of
Article 25 of the Constitution of India was not available to it, in a
subsequent judgment of Bijoe Emmanual and Ors. v. State of Kera/a and
Ors., [1986] 3 SCC 615, the Court had observed that the said finding was
not a sequiter to the reasoning of the Court and had crept into the
E judgment of Acharya Jagdishwarananda Avadhuta 's case by some slip. The
Division Bench, finding contradiction between the two judgments, referred
the matter to a bench of three Judges.
Before the Court, amongst other grounds, the respondent urged that
the decision to pr

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--
COMMISSIONER OF POLICE AND ORS.
v.
ACHARYA JAGADISHWARANANDA AVADHUTA AND ANR.
MARCH 11, 2004
[S. RAJENDRA BABU, DR. AR. LAKSHMANAN AND G.P. MATHUR, JJ.] B
Constitution of India-Articles 25 and 26-Right M profess religionMeaning of-Held, right extends to rituals, observances, ceremonies and modes
of worship which are essential or integral part of the religion-Essential or
integral part-Test for-Held, if taking away the part/practice results in C
fundamental change in character of the religion/belief, it is an essential/integral
part/practice-Performance ofTandava dance in public by Ananda MargisHeld, not an essential/integral part/practice.
The Ananda Marg is a religious sect within Hindu religion founded
in 1955. Performance ofTandava dance as a religious rite for the Ananda D
Margis was introduced around 1966 but there was no such written
prescription for such dance in Carya Carya, the book containing the
relevant doctrines of Ananda Margis. The respondent sought permission
from the appellant to take out a public procession performing Tandava
dance with skulls, daggers, trident, snakes etc. The appellant refused to E
grant permission. The order of the appellant was challenged by the
respondent by way of a writ petition before the Supreme Court under
Article 32 of the Constitution of India contending that order passed by
the appellant was violative of rights of the respondent guaranteed under
Article 25 and 26 of the Constitution of India. The writ petition filed by
the respondent was dismissed by the Court by its judgment in Acharya F
Jagdishwarananda Avadhuta etc. v. Commissioner of Police, Calcutta and
Anr., (1984] 1 SCR 447 holding that the performance of Tandava dance
in public was of a more recent origin than the origin of the sect itself and
therefore, it cannot be said that the rite was an essential religious rite of
the sect. The Court further observed that even though Tandava dance may
be prescribed as a religious rite, there is no prescription for performing G
the dance in public. The Court did not find any justification for the claim
that Tandava dance should be performed in public in the religious books
of the denomination.
After the judgment, the founder of the denomination, Shri Ananda
1019
II
1020
SUPREME COURT REPORTS
[2004] 2 S.C.R.
A
Murtiji, introduced the prescription of performance of Tandava dance in
public in the 1986 edition of Carya Carya. The respondent again applied
for permission to take out a procession. Permission was refused by the
appellant in terms of judgment of the Court in 1charya Jagdishwarananda
Avadhuta 's case. Thereafter, the respondent filed another writ petition
B under Article 32 of the Constitution of India before the Court. The writ
petition was disposed of observing that the case should be examined by
the High Court keeping in view the judgment of the Court in Acharya
Jagdishwarananda Avadhuta 's case.
The respondent thereafter filed a writ petition before the High Court
challenging the order of the appellant. The Single Judge allowed the writ
C petition. Upon appeal by the appellant, the Division Bench confirmed the
findings and order of the Single Judge.
The appellant filed appeal by way of special leave petition before the
Court. A Division Bench of the Court was of the opinion that while in
Acharya Jagdishwarananda Avadhuta's case, the Court had observed that
D Ananda Marg was not a separate religion and therefore, protection of
Article 25 of the Constitution of India was not available to it, in a
subsequent judgment of Bijoe Emmanual and Ors. v. State of Kera/a and
Ors., [1986] 3 SCC 615, the Court had observed that the said finding was
not a sequiter to the reasoning of the Court and had crept into the
E judgment of Acharya Jagdishwarananda Avadhuta 's case by some slip. The
Division Bench, finding contradiction between the two judgments, referred
the matter to a bench of three Judges.
Before the Court, amongst other grounds, the respondent urged that
the decision to prohibit Tandava dance in public was violative of Article
F
14 of the Constitution of India insofar as other religions and social
organisations were allowed to take out similar processions in the State.
G
The appellant contended that procession taken out by other religions
was a well established practice of those religions unlike in the case of
Ananda Margi.
Allowing the appeal, the Court
HELD: Per majority (S. Rajendra Babu J. for himself and G. P. Mathur,
J.)
1.1. The protection guaranteed under Articles 25 and 26 of the
H Constitution of India is not confined to matters of doctrine or belief but
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---
COMMR. OF POLICE v. A.J. AV AD HUT A
1021
extends to acts done in pursuance of religion and, therefore, contains a A
guarantee for rituals, observances, ceremonies and modes of worship
which are essential or integral part of religion. What constitutes an integral
or essential part of religion has to be determined with reference to its
doctrines, practices, tenets, historical background etc. of the given religion.
fl030-F-GJ B
The Commissioner, Hindu Religious Endowment, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [195.;] SCR 1005; Sardar
Syedna Taher Saifuddin Saheb v. The State of Bombay, (1962) Supp. 2 SCR
496 and Seshammal v. State of Tamilnadu, [1972) 2 SCC 11, referred to.
1.2. Essential part of a religion means the core beliefs upon which C
a religion is founded. Essential practice means those practices that are
fundamental to follow a religious belief. It is upon the cornerstone of
essential parts or practices the superstructure of religion is built. Without
which, a religion will be no religion. Test to determine whether a part or
practice is essential to the religion is to find out whether the nature of the D
religion will be changed without that part or practice. If the taking away
of that part or practice could result in a fundamental change in the
character of that religion or in its belief, then such part could be treated
as an essential or integral part. Such permanent essential part is what is
protected by the Constitution of India. Nobody can say that essential part
or practice of one's religion has changed from a particular date or by an E
event. Such alterable parts ·or practices are definitely not the 'core' of
religion where the belief is based and religion is founded upon. It could
only be treated as mere embellishments to the non-essential part or
practices. (1030-H; 1031-A-D]
1.3. In a given case it is for the Court to decide whether a part or F
practice is an essential part or practice of a given religion. (1031-FI
2.1. If in the earlier litigations the Court arrives at a conclusion of
fact regarding the essential part or practice of a religion, it will create
problematic situations if the religion is allowed to circumvent the decision
of Court by making alterations in its doctrine. Nobody could ever revisit G
such a finding of fact. Such an attempt will result in an anomalous situation
and could only be treated as a circuitous way to overcome the finding of
a Court. If subsequent alterations in doctrine could be allowed to create
new essentials, the judicial process will then be reduced into a useless
formality and futile exercise. Once there is a finding of fact by the
competent Court, then all other bodies are estopped from revisiting that H
1022
SUPREME COURT REPORTS
[2004] 2 S.C.R.
A conclusion. [1031-F-H; 1032-A)
N. Adithayan v. Travancore Devaswom Board, (20021 8 SCC 106,
referred to.
2.2. Practice of Tandava dance in public is not an essential part of
B Ananda Margi faith. Ananda Margi order was founded in 1955. Tandava
dance was introduced as a practice in 1966. Even without the practice of
Tandava dance Ananda Margi order was in existence. Therefore, Tandava
dance is not the "core" upon which Ananda Margi order is founded.
(1032-B; 1031-D-E)
C
3. The observation of the Court in Acharya Jagdishwarananda
Avadhuta 's case that Ananda Marga was not a separate religion and
therefore, Article 25 of the Constitution of India was not applicable, was
not the basis of the reasoning of the Court on any of the issues in the said
case. The Court is in agreement with the finding in Bijoe Emmanuel's case
that said observation appears to have crept into the judgment of the Court
D in Acharya Jagdishwarananda Avadhuta 's case by some slip.
(1032-G-H; 1033-Bl
Acha1ya Jagdishwarananda Avadhuta etc. v. Commissioner of Police,
Calcutta and Anr., [1984) 1 SCR 447 and explained.
E
Bijoe Emmanuel and Ors. v. State of Kera/a and Ors., (1986) 3 SCC
F
615, affirmed.
Per Dr. A. R. lakshmanan, J. (dissenting)
4.1. Whilst Constitution of India is neutral in religion, it, at the same
time, is benign and sympathetic of all religious creeds however
unacceptable they may be in the eyes of non-believers. Articles 25 and 26
of the Constitution of India embody a tolerance to all religions.
(1051-C-D)
4.2. The full concept and scope of religious freedom guaranteed
G under Articles 25 and 26 of the Constitution of India is that there are no
restraints upon the free exercise of religion according to the dictates of
one's conscience or upon the right freely to profess, practice and propagate
religion save those imposed under the police power of the State and the
other provisions of Part III of the Constitution. This means the right to
worship God according to the dictates of one's conscience. Man's relation
H to his God is made no concern for the State. (1053-G-H; 1054-A)
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COMMR. OF POLICE v. A.J. A VADHUT A
1023
4.3. The expression "religion" has not been defined in the A
Constitution of India and it is incapable of specific and precise definition.
Religion includes worship, faith and extends to even rituals. Belief in
religion is belief of practice of a particular faith, to preach and to profess
it. Mode of worship is integral part of religion. Forms and observances of
religion may extend to matters of food and dress. An act done in
furtherance of religion is protected by the Constitution of India. A person B
believing in a particular religion has to express his belief in such acts which
he thinks proper and to propagate his religion. Protection under Articles
25 and 26 of the Constitution of India extend guarantee for rituals and
observances, ceremonies and modes of worship which form part and parcel
of religion. [1058-B-E)
C
4.4. Any practice becomes part of religion only if such practice is
found to be essential and integral part of the religion. It is only those
practices which are integral part of religion that are protected by Articles
25 and 26 of the Constitution of India. What would constitute an essential
part of religion or religious practice is to be determined with reference to D
the doctrine of a particular religion which includes practices which are
regarded by the community as part and parcel of that religion. Test has
to be applied by the courts whether particular religious practice is
regarded by the community practising that particular practice as integral
part of the religion or not. It is also necessary to decide whether the E
particular practice is religious in character or not and whether the same
can be regarded as an integral and essential part of religion which has to
be decided based on evidence. If the conscience of a particular community
has treated a particular practice as an integral or essential part of religion,
the same is protected by Articles 25 and 26 of the Constitution of India.
[1058-E-G) F
The Commissioner, Hindu Religious Endowment, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954] SCR 1005; Himat
Lal K. Shah v. Commissioner of Police, Ahmedabad and Anr., [1973) 2 SCR
266; Commissioner of Police v. Acharya Jagdishwarananda, AIR (1991)
Calcutta 263; Durga Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors., G
(1962) 1 SCR 383; His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar
Swami etc. v. The State of Tamil Nadu, AIR (1972) SC 1586; Sardar Syedna
Taher Saifuddin Saheb v . .The State of Bombay, [1962) Supp. 2 SCR 496;
. Seshanmal v. State of Tamil Nadu, [1972] 2 SCC 11 and N. Adithyan v.
Travancore Devaswom Board, [2002) 8 sec 106, referred to.
H
1024
SUPREME COURT REPORTS
[2004] 2 S.C.R.
A
Constitutional Law of India 4th Edn. by Seervai, Jrlataraja in Art, Thought
and Literature by C. Sivaramamurti. referred to.
4.5. The freedom to act and practice religion can be subject to
regulations. However, in every case the power of regulation must be
exercised with the consciousness that the subject of regulation is a
B fundamental right of religion, and as not to unduly infringe the protection
given by the Constitution. Further in the exercise of the power to regulate,
the authorities cannot sit in judgement over the professed views of the
adherents of the religion and to determine whether the practice is
warranted by the religion or not. (1049-H; 1050-A-B]
C
Ratilal Pannachand Gandhi v. The State of Bombay and Ors., [ 1954) SCR
D
1005; Jamshedji Soonabai, AIR (1933) Born. 122, Commissioner H.R.E.,
Madras v. Lak.shmandra, (1954) SCR 1006; Sardar Syedna Taher Saifuddin
Saheb v. The State of Bombay, [1962) Supp. 2 SCR 496 and Sri Venkataramana
Devaru and Ors. v. State of Mysore and Ors., AIR (1958) SC 255, referred
to.
Jesse Cantwell v. State of Connecticut, [1939) 84 L. Ed. 1213 and
United States v. Ballard, [1943] 88 L. Ed. 1148, referred to.
4.6. Though the freedom of conscience and religious belief are
absolute, the right to act in exercise of a man's freedom of conscience arid
E freedom of religion cannot override public interest and morals of the
society and in that view it is competent for the State to suppress such
religious activities which are prejudicial to public interest. That apart, any
activity in furtherance of religious belief must be subordinate to the
criminal laws of the country. Thus polygamy or bigamy may be prohibited
or made a ground ·of disqualification for the exercise of political rights,
F
notwithstanding the fact that is in accordance with the creed of a religious
body. In an organised society there cannot be any individual right which
is injurious to the community as a whole. At the same time, the police
power is not absolute and must not be arbitrary or oppressive. In other
words, the police power must be exercised for preservation of the
G community from injury. What Constitution of India attempts to do is to
strike a balance between individual liberty and social control. There are
two limbs to religious freedom contained in Article 25 of the Constitution
of India. While one limb guarantees the right the other limb incorporates
restrictions on the exercise of the right so that they may not conflict with
public welfare or morality. [1054-B-C; E-FJ
H
Parthasaradi Ayyangar and Ors. v. Chinakrishna Ayyangar, ILR (5)
---
-
COM MR. OF POLICE v. A..I. AV ADI-I UTA
1025
Madras 304 and Ghulam Abbas v. State of UP., 1198211SCR1077, referred A
to.
4.7. Freedom of conscience and religious belief cannot be set up to
avoid those duties which every citizen owes to the nation; e.g. to receive
military training, to take an oath expressing willingness to perform
military service and so on. (1054-A-B]
B
4.8. The concept of "public order" which is a permissible restriction
under Article 25(1) of the Constitution of India needs to be distinguished
from the connotation "law and order". "Public order" has a larger
connotation than "law and order". Contravention of law to effect public
order must affect the community or the public at large. A mere C
disturbance of law and order leading to disorder is not one which affects
"public order". (1041-F-G]
Dr. Ram Manohar Lohia v. State of Bihar and Ors., (1966) 1 SCR 709,
referred to.
5.1. The performance of Tandava dance in public procession forms
part of the Ananda Margis religion and is also a matter of religion within
the meaning of Articles 25 and 26 of the Constitution of India. (1045-E)
D
5.2. Although the specific introduction of Tandava dance in public
procession may have been recent, this does not detract from the fact that E
the Tandava dance is part of the religion of Ananda Margis. In any
religion, practices may be introduced according to the decisions of the
spiritual Head. If these practices are accepted by the followers of such
spiritual Head as a method of achieving their spiritual upliftment, the fact·
that such practice was· recently introduced cannot make it anytheless a
matter of religion. [1043-F-G]
F
5.3. The tenets of the Ananda Margi are both oral and written as in
the case of many religions. The fact that there were no writings to show
to the Court that Tandava dance is to be performed in public, did not
negative the existence of such precepts. Moreover, in the 1986 edition of
Carya Carya specific mention was made by Anand Murtiji of the G
requirement of Tandava dance in procession on special functions and
festivals. [1048-H; 1049-A-B]
5.4. The Ananda Margis cannot be deprived of their right to practice
their religion in the manner prescribed by their religious preceptor, except
on the grounds of public order, morality and health. (1045-E-F]
H
1026
SUPREivtE COURT REPORTS
[20041 2 S.C.R.
A
5.5. In the orders by which the permission has been refused, the
Police Authorities have refused permission in terms of the order of the
Court in Acharya Jagdishwarananda Avadhuta 's case. The Court in the said
case had never directed the said"authorities not to accede to the
performance of the Tandava dance in public procession. It was, therefore,
B wrong for the State Authorities to refuse permission purportedly in terms
of the Court's· orders in Acharya Jagdishwarananda Avadhuta 's case.
(1045-GI
c
Acharya Jagdishwarananda Avadhv.ta etc. v. Commissioner of Police,
Calcutta and Anr., [1984] 1 SCR 447, referred to.
5.6. The order refusing permission do not contain any reference to ·
public order of morality. However, the appellants, at the time of hearing
of this appeal, tried to improve their case by affidavits which cannot at
all be permitted. The reason justifying refusal of permission should have
appeared in the order refusing permission itself. The only reason given
D was the Court's order in Acharya Jagdishwarananda Avadhuta 's case. These
reasons cannot now be modified or supplemented by way of an affidavit
in the proceedings. {1045-H; 1046-A-B]
Mohinder Singh Gill v. The Chief Election Commissioner, AIR (1978)
SC 851 and Acharya Jagdishwarananda Avadhuta etc. v. Commissioner of
E Police, Calcutta and Anr., [1984) 1 SCR 447, referred to.
6.1. If one religious denomination is allowed to carry its religious
practice but another religious denomination is restrained from carrying
on religious practice and almost similar religious practices, the same makes
out a clear case of discrimination in violation of the principles of Article
F 14 of the Constitution oflndia. [1047-E-F]
6.2. It is not for the appellant to give his disapproval to practice of
a particular sect which are in his opinion not well established. To allow
any authority to judge the truth or falsity of a religious belief or practice
G is to destroy the guarantee of religious freedom in the Constitution.
[1051-B]
7. The appellant has got power to regulate assemblies, meetings and
processions in public places etc. He is entitled to prescribe the route by
which and the times at which such processions may pass, in order to keep
H the public places and prevent obstructions on the occasions of such
I
I
COMMR. OF POLICE v. A.J. AVADHUTA [RAJENDRA BABU, J.] I 027
assemblies, meetings and processions and in the ~eighbourhood of places A
of worship during the time of public worship. The authorities concerned
can step in and take preventive measures in the interest of maintenance
of law and order if such religious processions disturb law and order.
(1059-E-F; 1057-B(
8. The contention that the word 'religion' under Article 25(1) of the B
Constitution oflndia does not include sect of religion of Ananda Marga
being declared as religious denomination does not qualify for the same
protection as religion is not tenable. The Ananda Margis are· a religious
denomination and as such art entitled to the protection under Articles 25
and 26(b) of the Constitution of India for their beliefs and practices . C
including their practice ofTandava dance in a procession or public place.
(1049-D-E; 1046-E-F(
Acharya Jagdishwarananda Avadhuta eic. v. Commissioner of Police,
Calcutta and Anr., (1984) 1 SCR 447; The Commissioner, Hindu Religious
Endowment, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, . D
(1954) SCR 1005 and Sri Venkataramana Devaru and Ors. v. State of Mysore ·
and Ors., AIR (1958) SC 255, referred to.
f
P.MA. Metropolitan and Ors. etc. etc. v. Moran Mar Marthoma and
Anr. etc. etc., AIR (1955) SC 2001 and Mohd. Hanif Quareshi and Ors. v.
The State of Bihar, (1959] SCR 629, cited.
E
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6230 of
1990.
From the Judgment and Order dated 8.11.90 of the Calcutta High Court
in FMAT No. 1451 of 1990.
Tapas Ray, H.K. Puri and Bijan Ghosh for the Appellant.
T.R. Andhyarujina, Ranjan Dwivedi, Radha Shyam Sharma, Fieroze
Ahmad and Ashish Chugh for the Respondents.
The Judgment of the Court was delivered by
RAJENDRA BABU, J. This is second round of litigation. In the first
round of litigation question raised before this Court was whether performance
F
G
of Tandava dance in public is an essential practice of Ananda Margi order or
not. This court in Acharya Jagdishwaranda Avadhuta_ and Ors. v. The
Commissioner of Police, Calcutta and Anr., [I 983] 4 SCC 522, (First Ananda H
1028
SUP\lEME COURT REPORTS
[2004] 2 S.C.R.
A Margi case), held that Tandava dance in public is not an essential rite of
Ananda Margi faith. ,Subsequent to the first case, it appears that Ananda
. Murti Ji-founder of that order prescribed to perform Tandava dance in public
as an essential religious practice in Carya Carya, a book containing the relevant
doctrines. Based on this, Ananda Margis sought permission of the
B Commissioner of Police to· perform Tandava dance in public. The
Commissioner accorded permission to take out Tandava dance without knife,
live snake, trident or skull. This was challenged by the Respondents herein
before this Court by filing Writ Petition (Civil) Nos 1317-18of1987. This
c
D
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 and Ors. v.
The Commissioner of Police, Calcutta and Anr., reported in (1984) 1
SCR 447. Petitioners are at liberty to go before Hi_gh Court."
Firstly a Single Judge and subsequently a Division Bench of the Calcutta
High Court arrived at the conclusion that taking out Tanda-;a dance in public
carrying skull, trident etc is an essenti~I part of Anand~ Margi faith and
Commissioner of Police could not impose conditions to it: This decision is
now under challenge.
-
E
When this matter came up for consideration before this Court, a Bench
F
of two learned Judges made an order on 13.11.1992 as fol\ows:-
"After hearing the parties for sometime and having considered the
decision of the three learned Judges of this Court in Acharya
Jagdishwaranand Avadhuta etc. v. Commissioner of Police, Calcutta
and Anr., [1984) I SCR 447 we are of the view that this is a matter
which requires consideration by a Constitution Bench of this Court.
Hence, we request the learned Chief Justice to constitute the Bench
as early as possible for hearing of the matter".
On 4.12.2001 a Constitution Bench of this Court considered this matter
G and noticed that (i) that the Bench does not express any difficulty in following
the earlier judgment, (ii) that they do not set out any substantial question of
law which requires the decision of a Constitution Bench since that order
merely stated that the matter should be heard and decided by a Constitution
Bench. The Constitution Bench felt that in those circumstances there was no
l H justification for hearing the appeal by the Constitution Bench and therefore
-
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-
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COMMR. OF POLICE r. A . .1. AVADHUTA [RAJENDRA BABU. J.] I 029
placed the matter back before the two learned Judges for final disposal who A
in their turn made a referen.ce to a Bench of three Judges.
The relevant question herein for consideration is whether the High
Court is correct in it's finding that Tandava dance is an essential and integral
part of Ananda Margi faith based on the revised edition of Carya Carya. A
bench consisting of three judges of this Court in first Ananda Margi case B
arrived at a unanimous conclusion on facts that Tandava dance in public is
not an essential and integral part of Ananda Margi faith. In order to arrive
at this conclusion this Court inter alia took the following four aspects into
account.
I.
Shri. Prabhat Ranjan Sarkar otherwise known as Shri Ananda C
Murti, founded a socio-spiritual organization claimed to have been
dedicated to the service of humanity in different spheres of life
such as physical, mental and spiritual, irrespective of caste, creed
or colour, in the year 1955.
2.
Ananda Marga contains no dogmatic beliefs and teaches the yogic D
and spiritual science to every aspirant.
3.
Tandava dance was not accepted as an essential religious rite of
Ananda Margis in 1955 when that order was first established. It
was introduced for the first time as a religious rite in or around
1966.
4.
Ananda Marga is a religious denomination of the Shiviate order,
which is a well-known segment of Hindu religion.
After taking into account of all the relevant facts~ including the above,
E
this Court held:
F
"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 G
that taking out religious processions with Tandava dance is an essential
religious rite of Ananda Margis. On the basis of the literature of the
Ananda Marga denomination it has been contended that there is
prescription of performance of Tandava dance by every follower of
Ananda Marga. Even conceding that Tandava dance has been H
1030
SUPREME COURT REPORTS
(2004] 2 S.C.R.
A .
prescribed as a religious rite for every follower of the Ananda Marga
it does not follow as a necessaty corollary that Tandava dance to be
performed in the public is a matter of religious rite"
By the above finding this Court was categorical in it's judgment that
Tandava dance in public is not an essential part of religious rites of Ananda
B Margi faith. The conclusion arrived at by this Court regarding the non essential
nature of Tandava dance to Ananda Margi faith was principally based on the
fact that the order itself is of recent origin and the practice of dance is still
more recent. Court even went to the extent of assuming that Tandava dance
was prescribed as a rite and then arrived at the conclusion that taking out
C Tandava dance in public is not essential to Ananda Margi faith. After arriving
at the above ratio, the Court further added that -
D
"In fact, there is no justification in any of the writings of Shri Ananda
Murti that Tandava dance must be performed in public. At least none
could be shown to us by Mr. Tarkunde despite an enquiry by us in
that behalf."
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 nonE essential nature of Tandava dance to the Ananda Margi faith is due to the
non-availability of any literature or prescriptions by the founder. The High
Court is under the wrong impression that an· essential part of religion could
be altered at any subsequent point of time.
The protection guaranteed under Articles 25 and 26 of the Constitution
F is not confined to matters of doctrine or belief but extends to acts done in
pursuance of religion and, therefore, contains a guarantee for rituals,
observances, ceremonies and modes of worship which are essential or integral
part of religion. What constitutes an integral or essential part of religion has
to be determined with reference to its doctrines, practices, tenets, historical
G background etc. of the given religion. (See generally the Constitution bench
decisions in The Commissioner v. LT Swamiar of Srirur Mutt, [1954] SCR
1005, SSTS Saheb v. State of Bombay, [l 962] Supp 2 SCR 496, and Seshammal
v. State of Tamilnadu, [1972] 2 SCC 11, regarding those aspects that are to
be looked into so as to determine whether a part or practice is essential or
not). What is meant by 'an essential part or practices of a religion' is now
H the matter for elucidation. Essential part of a religion means the core beliefs
-
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COMMR. OF POLICE v. A.J. AVADHUTA [RAJENDRA BABU. J.] 1031
upon which a religion is founded. Essential practice means those practices A
" ·that are fundamental to follow a religious belief. It is upon the cornerstone
of essential parts or practices the superstructure of religion is built. Without
which, a religion will be no religion. Test to determine whether a part or
practice is essential to the religion is to find out whether the nature of religion
will be changed without that part or practice. If the taking away of that part B
or practice could result in a fundamental change in the character of that
religion or in its belief, then such part could be treated as an essential or
integral part. There cannot be additions or subtractions to such part. Because
it is the very essence of that religion and alterations will change its fundamental
character. It is such permanent essential parts is what is protected by the
Constitution. No body can say that essential part or practice of one's religion C
has changed from a particular date or by an event. Such alterable parts or
practices are definitely not the 'core' of religion where the belief is based and
religion is founded upon. It could only be treated as mere embellishments to
the non-essential part or practices.
Here in this case Ananda Margi order was founded in 1955. Admittedly, D
Tandava dance was introduced as a practice in 1966. Even without the practice
of Tandava dance (between 1955 to 1966) Ananda Margi order was in
existence. Therefore, Tandava dance is not the 'core' upon which Ananda
Margi order is founded. Had Tandava dance been the core of Ananda Margi
faith, then without which Ananda Margi faith could not have existed.
There is yet another difficulty in accepting the reasoning of the High
Court that a subsequent addition in Carya Carya could constitute Tandava
dance as essential part of Ananda Margi faith. In a given case it is for the
Court to decide whether a part or practice is an essential part or practice of
E
a given religion. As a matter of fact if in the earlier litigations the Court F
arrives at a conclusion of fact regarding the essential part or practice of a
religion it will create problematic situations if the religion is allowed to
circumvent the decision of Court by making alteration in its doctrine. For
example, in N Adithayan v. Travancore Devaswom Board, [2002] 8 SCC
106, this Court found that a non-brahmin could be appointed as a poojari
(priest) in a particular temple and it is not essential to that temple practice to G
appoint only a brahmin as poojari. Is it open for that temple authorities to
subsequently decide only brahmins could be appointed as poojaris by way of
some alterations in the relevant doctrines? We are clear that no party could
ever revisit such a finding of fact. Such an attempt will result in anomalous
situations and could only be treated as a circuitous way to overcome the H
1032
SUPREME COURT REPORTS
(2004] 2 S.C.R.
A finding of a Court. If subsequent alterations in doctrine could be allowed to
create new essentials, the judicial process will then be reduced into a useless
formality and futile exercise. Once there is a finding of fact by the competent
Court, then all other bodies are estopped from revisiting that conclusion. On
this count also the decision of High Court is liable to be set aside.
B
In the result, we respectfully adopt the finding of this Court in the first
Ananda Margi case and allow the instant appeal. Since we find that practice
of Tandava dance in public is not an essential part of Ananda Margi faith,
there is no need to look into any other arguments advanced before us. The
order in the Writ Petition as affirmed by the Division Bench is set aside and
C the Writ Petition is dismissed.
Before patting with this matter, it is necessary for us to refer to the
observations made by this Court in Bijoe Emmanuel and Ors. v. State of
Kera/a and Ors., (1986] 3 SCC 615, because reference to three Judges'
Bench has arisen on account of these observations. In Bijoe Emmanuel's case
D (supra) this Court adverted to the decision of this Court in the earlier round
of litigation in First Ananda Margi case (supra) and observed as follows :-
E
F
G
H
"The question in that case was whether the Ananda Margis had
a fundamental right within the meaning of Article 25 or Article
26 to perform Tandava dance in public streets and public places.
The court found that Ananda Marga was a Hindu religious
denomination and not a separate religion. The court examined the
question whether the Tandava dance was a religious rite or practice
essential to the tenets of the Ananda Marga and found that it was
not. On that finding the court concluded that the Ananda Marga
had no fundamental right to perform Tandava dance in public
streets and public places. In the course of the discussion, at one
place, there is found the following sentence :
'Mr. Tarkunde for the petitioner had claimed protection of
Article 25 of the Constitution but in view of our finding that
Ananda Marga was not a separate religion, application of
Article 25 is not attracted.'
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
_............,.
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COMMR. OF POLICE v. A.J. A YADHUTA [DR. AR. LAKSHMANAN . .I.] I 033
to perform Tandava dance in public streets pursuant to the right A
claimed by them under Article 25( I)."
We respectfully agree with what has been stated above in Bijoe
Emmanuel's case (supra) insofar as the First Ananda Margi case is concerned.
As noticed therein, these observations are not the basis of the reasoning of
the court on any of the issues. Therefore, it would not affect the final outcome B
of the case.
The appeal is allowed accordingly.
DR. AR. LAKSHMANAN, J. This appeal stems from the judgment
and order dated 08.11.1990 passed by the Division Bench of the Calcutta C
High Court in F.M.A.T. No. 1451of1990 dismissing the appeal filed by the
Commissioner. of Police with a directive to the effect that "The Police
Authorities should permit the Ananda Margis to perform the Tandava dance
in public processions on the occasion of their principal religious functions
listed in prayer (b) of the writ petition on their undertaking to maintain peace D
and discipline on such occasions." The Division Bench affirmed the judgment
and order dated 07.05.1990 passed by the learned Single Judge of the said
Court allowing the writ petition of the respondents herein with a declaration
that "Tandava dance as prescribed for the followers of Ananda Margis is an
essential and integral part of the religion of the said religious denomination
and that they have a right to perform such a dance in public on the occasions · E
prescribed in this behalf subject to the restrictions under Articles 25 and 26
of the Constitution of India and the Police Authorities have no jurisdiction to
impose ban on such a dance."
This q1se has a long and chequered carrier. The facts are stated as
under:-
F
Ananda Murtiji introduced Tandava dance requiring it to be performed
daily by an Ananda Margi as one of his religious rites.
What is Tandava Dance:
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
G
to hold a Iathi and a damroo and sword. Dancer may also use live snake in H
1034
SUPREME COURT REPORTS
[2004] 2 S.C.R.
A place of skull in day time and fire mashal's or damroo during night time.
Tandava dance lasts for a few minutes where two or three persons dance by
lifting one leg to the level of chest and then bringing it down and lifting the
other. Ananda Murtiji by incorporating Tandava dance in the system of beliefs
of Ananda Marga wanted to bring it to its original glory. Tandava dance
symbolises 'life' and 'death'. The skull represents death and the knife
B represents life. The Ananda Margis are followers of Shaivite order within
Hindu religion and Ananda Murtiji directed perfonnance of Tandava dance
as one of the prescriptions of religious rite to be followed by an Ananda
Margi in private life and public places.
c
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. In that circumstances, the Police Authorities
declared the assembly unlawful and the police force was compelled to
intervene. The Commissioner of Police, Calcutta made repetitive orders under
D Section 144 of the Code of Criminal Procedure, 1973 since August, 1979,
directing that no member of a procession or assembly of five or more persons
should carry any fire arms, explosive, swords, spears, knives, trident, lathis
or any article which may be used as weapon of offence or any article likely
to cause annoyance to the public. This order of the Police Commissioner was
E challenged by the General Secretary of the Ananda Marga in a Writ Petition
No. 903 of 1980 before the High Court of Calcutta. The Calcutta High Court,
by order dated 23.09.1980, rejected the said writ petition for the reasons
recorded therein. Again the Commissioner of Police, Calcutta made a fresh
order under Section 144 of the Code of Criminal Procedure, 1973 on
29 .03 .1982 wherein the same restraints as mentioned in the earlier order were
F imposed and an application for permission to take out a procession on the
prohibited streets accompanied with Tandava dance was rejected by him. The
said order refusing permission by the Police Commissioner was challenged
by filing a writ petition under Article 32 of the Constitution of India in this
Court being registered as Writ Petition Nos. 6890 and 7204 of 1982.
G
H
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
COMMR. OF POLICE v. A..I. AVADHUTA [DR. AR. LAKSHMANAN. J.] 1035
acceptable in view of the clear assertion that it was not an A
institutionalised religion but a religious denomination. Ananda
Margis belong to the Shaivite order and as such they belong to
the Hindu religion.