Commissioner of Police & Ors Vs. Acharya Jagdishwarananda Avadhuta & Anr
 Insc 155 (11
Ar. Lakshmanan Dr. Ar. Lakshmanan, J.
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.
is Tandava Dance:
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
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.
respondents took out a procession with human skulls, daggers, trident etc.
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 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
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 Writ Petition
Nos. 6890 and 7204 of 1982.
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:
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.
Courts have the power to determine whether a particular rite or observance is
regarded as essential by the tenets of a particular religion.
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.
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
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 Commissioner of
Police, Calcutta & Anr. reported in  1 SCR 447.
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 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
New Year Day;
Purnima (Vasanttotsava) and
Dharma Maha Chakra and Dharma Maha Sammelans.
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
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:
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.
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.
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.
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.
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.
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.
heard the arguments of Mr. Tapas Ray, learned senior counsel for the appellants
and Mr. T.R. Andhyarujina, learned senior counsel for the respondents.
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.
Ray, learned senior counsel appearing for the appellants, submitted that –
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;
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;
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);
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;
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;
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.
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.
T.R. Andhyarujina, learned senior counsel, made elaborate submissions in
support of the respondents' case and cited many decisions.
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.
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
present case, what constitutes an essential part of a religion is primarily to
be ascertained with reference to the doctrine of that religion itself and the
Court cannot say that a belief or practice is not part of religion. In support
of this contention, he relied on the following judgments:-
Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt  SCR 1005
Syedna Taher Saifuddin Saheb vs. The tState of Bombay  (Supp.2) SCR 496 at 531-532]
and Others, etc. etc. vs. State of Tamil Nadu  (2) SCC 11]
4. Ratilal Pannachand Gandhi vs.The State of Bombay & Ors.  SCR
5. N. Adithayan
vs. Travancore Devaswom Board & Ors.  (8) SCC 106]
Durga Committee, Ajmer & Anr. vs. Syed Hussain Ali & Ors.  (1)
SCR 383 at 412
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].
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.
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'
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
connotation 'law and order'. As stated by this Court in Dr. Ram Manohar Lohia
vs. State of Bihar & Ors.  (1) SCR 709 at 745] that every breach of
peace does not lead to public disorder.
senior counsel for the respondents relied on the decision of the Constitution
Bench in Himat Lal K. vs. Commissioner of Police, Ahmedabad & Anr. 
(2) SCR 266] for the proposition that the right to carry out religious
processions in public streets.
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[.
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.
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.
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 said
question is still open for reconsideration. This apart, this Court in arriving
at its finding that the Tandava dance was not an essential part of Ananda Margis
religion had taken into consideration the fact that there was no document to
show that the Tandava dance was to be performed in public. As rightly pointed
out by the High Court, there has been a factual change in the situation since
the earlier judgment. The High Court, therefore, is right in holding that it
has the jurisdiction to entertain the present writ proceedings.
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
as the recentness of the practice is concerned, it has been submitted by Mr. Andhyarujina
that the Tandava dance has been closely associated with Hinduism from time
immemorial and in support of this argument he relied upon several authorities
and that the Hindus in general have always believed in dance as a form of
worship vide "Nataraja in Art, Thought and Literature" by C. Sivaramamurti.
He would further submit that Ananda Murtiji was considered by the Ananda Margis
as their religious preceptor or guru and any direction given by him was a
mandate which could not be disobeyed.
the rites and rituals which would be prescribed by Ananda Murtiji would form an
integral part of their religion as Ananda Murtiji was alive till recently, necessarily
such directives could continue to be given until his death.
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.
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:
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;
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....
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.
dance has to be performed which are religious in nature. It is stated in
Chapter 15 of the Carya Carya that our social-cum-spiritual functions will be
considered part of our spiritual life. Admittedly, the original Tandava dance
of Siva forms part of the Hindu religion which is said to represent the
threefold processes of creation, preservation and destruction. The rhythm,
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.
close scrutiny of the order refusing permission do not contain any reference to
public order or morality. However, the appellants, at the time of hearing of
this appeal, tried to improve their case by affidavits which cannot at all be
permitted. The reason justifying refusal of permission should have appeared in
the order refusing permission itself. The only reason given was this Court's
order. These reasons cannot now be modified or supplemented by way of an
affidavit in the proceedings as held by this Court in Mohinder Singh Gill vs.
The Chief Election Commissioner [AIR 1978 SC 851. 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:
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 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
argued on behalf of the respondents that the Ananda Marga which has been
declared as a religion by this Court has been discriminated and singled out by
the West Bengal Government for its ideological differences as its philosophy is
based on spirituality. Several instances were pointed out by the respondents.
Particulars were also furnished by the respondents in their writ petition in
this regard. According to the respondents, processions of various hues are
taken out regularly in Calcutta and the celebration of Muslim festival of
Muharram is taken out with various deadly weapons as well as Sikh celebrations
with sword fighting display in public, the procession of workers of Bharat Sevasram
Sangha (a Social and not even a religious organisation) are allowed to move on
horseback and carrying swords through the streets. Besides these, the example
of Bolana and 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.
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.
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:-
6 times a year on days of festivals and social functions
1000 members in procession
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;
Knife/trident is only of 3" to 4"
skull is held in the left hand and knife/trident (sometimes a torch) is held in
Each of the items, tandava dance, trident/knife and skull has a deep spiritual
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
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.
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.
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.
shall now consider whether Ananda Margis have the fundamental right under
Articles 25 and 26 of the Constitution of India.
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.
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
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,
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.
"public order" has a larger connotation than "law and
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)).
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.
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 freedom
in the Constitution(see US vs. Ballard, 88 L.Ed.1148).
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.
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
in that spirit of tolerance that creeds like the Petitioner with their
practices must be accepted in our society".
Court has explained in a number of decisions that what constitutes an essential
part of a religion is primarily to be ascertained with reference to the
doctrine of that religion itself and the Court cannot say that a belief or
practice is not part of religion. This proposition was authoritatively laid
down by the Constitution Bench of this Court (Seven Judges) in Shirur Mutt's
case (supra) as extracted in paras (supra).
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.
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 restrict and prohibit them in any manner they like under the guise
of administering the trust estate." This Court quoted with approval Jamshedji
vs. Soonabai (supra) where the Bombay High Court held, "if this is the
belief of the community......a secular judge is bound to accept that belief -
it is not for him to sit in judgment on that belief, he has no right to
interfere with the conscience of a donor who makes a gift in favour of what he
believes to be the advancement of his religion and the welfare of his community
or mankind." 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 not in line with the above decisions including that of seven Judges
Bench in the case of Shirur Mutt (supra).
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
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.
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
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.
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.
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".
this context, I can also usefully refer to the decision of this Court in Ratilal
I am, therefore, of the opinion that the observation of the learned Judges in
the referring order dated 17.01.2002 are not correct.
given my thoughtful consideration to the important questions of law posed for
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:
Public order, morality and health;
Other provisions of Part III of the constitution;
Regulating nonreligious activity associated with religious practice;
Social welfare and reform &
Throwing open Hindu religious institutions of public character to all classes
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.
the freedom of conscience and religious belief are absolute, the right to act
in exercise of a man's freedom of conscience and freedom of religion cannot
override public interest and morals of the society and in that view it is
competent for the state to suppress such religious activity which are
prejudicial to public interest. That apart, any activity in furtherance of
religious belief must be subordinate to the criminal laws of the country. It
must be remembered crime will not become less odious because sanctioned by what
a particular sect may designate as religious. Thus polygamy or bigamy may be
prohibited or made a ground of disqualification for the exercise of political
rights, notwithstanding the fact that is in accordance with the creed of a
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
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
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.
prohibiting indiscriminate slaughter of cows the Court did two things.
sentiments were respected and butchers retained a large part of their trade.
rejecting their claim that cow slaughter was an "essential practice of
Islam" relying on its own interpretation of Koran, the Hindus were
the Court has assumed the role of the theologian after making a roving enquiry.
While the decision is criticized on the ground that, once this door is opened,
there is no limit to which the Court cannot go, the answer is that the power of
judicial review as a basic structure is vested with the Court and if some one
has to be trusted, let it be the Courts even in matters of faith. This Court,
as stated earlier, considered this question whether performance of Tandava
dance is a religious rite or practice essential to the tenets of the religious
faith of the Ananda Margis. The Court while upholding Ananda Marga satisfies
all the three conditions envisaged by Article 26 of the Constitution of India
and as such a religious denomination negatived their claims to perform Tandava
Dance in public (1. It is a collection of individuals who have a system of
beliefs which they regards as conducive to their spiritual well-being; 2. they
have a common organization, and 3 the collection of these individuals has
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.
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.
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.
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
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.
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...
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.
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.
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 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.
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
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.
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.
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
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.
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.
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.
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
Commissioner has got power to regulate assemblies, meetings and processions in
public places, etc. It specifically provides that he is entitled to prescribe
the routes by which and the times at which such processions may pass, in order
to keep the public places and prevent obstructions on the occasion of such
assemblies, meetings and processions and in the neighbourhood of places of
worship during the time of public worship.
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;
The participants to the procession shall not carry wooden bars, weapons, metal
rods, weapons capable of inducing violence.
Loud speakers shall not be used.
Traffic regulations should be observed.
Traffic should not be obstructed.
Normal activities of common man should not be disturbed.
Objectionable slogans and illegal slogans or provocative slogans affecting
others' sentiments shall not be expressed or voiced.
shall proceed in five persons row and shall keep one side of the road by keeping
other side for transport.
Crackers are prohibited
They should not spray colour powders The instructions of police officers and
other regulations as above should be followed."
the foregoing reasons, I am of the opinion that the appeal filed by the appellats
has no merits and is, therefore, dismissed.
opinion, it is a fit case for awarding of exemplary costs to the respondents.
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