Acharya Jagdishwaranand Avadhuta, Vs.
Commissioner of Police, Calcutta & ANR [1983] INSC 155 (20 October 1983)
MISRA RANGNATH MISRA RANGNATH BHAGWATI, P.N.
SEN, AMARENDRA NATH (J)
CITATION: 1984 AIR 512 1984 SCR (1) 447 1983
SCC (4) 522 1983 SCALE (2)565
CITATOR INFO :
HO 1987 SC 748 (23) RF 1992 SC 377 (10)
ACT:
Constitution of India-Arts. 25 and 26-Scope
of. Religious denomination-What is? Whether a particular rite or observance is
an essential religious rite of a religion- Court can decide.
Constitution of India-Arts. 25 and 26-Whether
protection of Arts. 25 and 26 available to Ananda Marga-A socio-Spiritual
organisation. Ananda Marga not a separate religion but a religious
denomination. Performance of Tandava dance in procession in public streets not
an essential religious rite of Ananda Marga.
Code of Criminal Procedure, 1973-S.144-Scope
of Prohibitory Order under s.144-Meant to meet emergent situation-Order not
permanent or semipermanent in character- Making of repetitive orders amounts to
abuse of power.
Words and Phrases 'Religious denomination'.
HEADNOTE:
Respondent No. 1 was alleged to have been
making repetitive orders under s.144 of the Code of Criminal Procedure, 1973
from August 1979 directing that no member of a procession or assembly of five
or more persons should carry any fire arms, explosives, swords, spears, knives,
tridents, lathis or any article which may be used as weapon of offence or any
article likely to cause annoyance to the public, for example skulls. A writ
petition was filed in the High Court for a direction on the respondents not to
impose such restraints on the followers of Ananda Marga. The High Court
dismissed the writ petition. The respondent No. 1 made a similar order on March
29, 1982. An application for permission to take out a procession in the public
streets by the followers of Ananda Marga accompanied with Tandava dance was
rejected. The petitioner filed writ petition under Art.
32 of the Constitution for a direction to the
respondent No. 1 and the State to allow procession to be carried in the public
streets and meetings to be held in public places by the followers of the Ananda
Marga accompanied by the performance of Tandava dance within the State of West
Bengal. The petitioner submitted that Ananda Marga was a socio-spiritual
organisation dedicated to the service of humanity in different spheres of life
such as physical, mental and spiritual, irrespective of caste. creed or colour;
one of the prescriptions of the religious rites to be 448 performed by an Ananda
Margi was Tandava dance which was to be performed with a skull, a small
symbolic knife, a trishul, and a damroo; and at intervals processions were
intended to be taken out in public places accompanied by the Tandava Dance as a
religious practice. The petitioner contended that Tandava Dance was an
essential part of the religious rites of Ananda Margis and that they were
entitled to practice the same both in private as also in public places and
interference by the respondent was opposed to the fundamental rights guaranteed
under Arts. 25 and 26 of the Constitution. The petitioner also contended that
repetitive orders under s.144 of the Code of Criminal Procedure were not
contemplated by the Code and, therefore, making of such orders was an abuse of
the law and should not be countenanced.
Dismissing the writ petitions,
HELD: The Ananda Marga is not a separate
religion by itself. Therefore, application of Art. 25 of the Constitution is
not attracted. The petitioner asserted that Ananda Marga was not an
institutionalised religion but was a religious denomination. The writings of
the founder of the Ananda Marga are essentially founded upon the essence of the
Hindu philosophy. The test indicated in (1966) 3 S.C.R. 242 and the admission
in para 17 of the writ petition that Ananda Margis belong to the Shaivite order
lead to the clear conclusion that Ananda Margis belong to the Hindu religion.
[455 E.456 C] Sastri Yagnapurushadji &
Ors. v. Muldas Bhudar das Vaishya & Anr., [1966] 3 S.C.R. 242, referred to.
The words 'religious denomination' in Art. 26
of the Constitution must take their colour from the word 'religion' and if this
be so, the expression religious denomination' must also satisfy three
conditions:
(1) It must be a collection of individuals
who have a system of beliefs or doctrines which they regard as conducive to
their spiritual well-being, that is, a common faith;
(2) common organisation; and (3) designation
by a distinctive name.
In the instant case Ananda Marga appears to
satisfy all the three conditions. Ananda Marga, therefore, can be appropriately
treated as a religious denomination within the Hindu religion. [456 G-457 C]
The Commissioner, Hindu Religious Endowments, Madras v.
Sri Lakshmindra Thirtha Swamiar or Sri Shirur
Mutt, [1954] S.C.R. 1005 at 1021; The Durgah Committee Ajmer & Anr. v.
Syed Hussain Ali & Ors., [1962] 1 S.C.R.
383; and S.P. Mittal etc. v. Union of India & Ors., [1983] 1 S.C.R. 729 at
774 referred to.
449 Article 26 of the Constitution provides
that subject to public order, morality and health, every religious denomination
or any section thereof shall have the right to manage its own affairs in
matters of religion. Courts have the power to determine whether a particular
rite or observance is regarded as essential by the tenets of a particular
religion. [457 C-D, 458 H] Ratilal Panachand Gandhi v. The State of Bombay
& Ors., [1954] S.C.R. 1055; and Tilkayat Shri Govindlalji Maharaj v. The
State of Rajasthan & Ors., [1964] 1 S.C.R. 561 referred to.
In the instant case the Tandva dance was not
accepted as an essential religious rite of Ananda Margis when in 1955 the
Ananda Marga order was first established. It is the specific case of the
petitioner that Shri Ananda Murti, founder of Ananda Marga, introduced Tandva as
a part of religious rites of Ananda Margis later in 1966. Ananda Marga as a
religious order is of recent origin and Tandva dance as a part of religious
rites of that order is still more recent. It is doubtful as to whether in such
circumstances Tandva dance can be taken as an essential religious rite of the
Ananda Margis. Even conceding that Tandva dance has been prescribed as a
religious rite for every follower of the Ananda Marga it does not follow as a
necessary corollary that Tandava dance to be performed in the public in a
religious procession 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.
Therefore, performance of Tandava dance in
procession in the public streets or in gatherings in public places is not an
essential religious rite of the followers of the Ananda Marga. Thus, the Claim
that the petitioner has a fundamental right within the meaning of Arts. 25 or
26 to perform Tandava dance in public streets and public places has to be
rejected. [459 E-460 E] An order made under s.144 of the Code of Criminal
Procedure is intended to meet an emergent situation. The order is not intended
to be either permanent or semi- permanent in character. The order is to remain
valid for two months from the date of its making as provided in sub-s.(4) of
s.144. The proviso to sub-s.(4) of s.144 which gives the State Government
jurisdiction to extend the prohibitory order for a maximum period of six months
beyond the life of the order made by the Magistrate is clearly indicative of
the position that Parliament never intended the life of the order under s.144
of the Code to remain in force beyond two months when made by a Magistrate. The
scheme of that section does not contemplate repetitive orders and in case the
situation so warrants steps have to be taken under other provisions of the law
such as s.107 or s.145 of the Code when individual disputes are raised and to
meet a situation such as in this case, there are provisions to be found in the
Police Act. If repetitive orders are made it would clearly amount to abuse of
the power conferred by s.144 of the Code. [461 D-462 D] Gopi Mohun Mullick v.
Taramoni Chowdhrani, ILR 5 Cal.
7; Bishessur Chuckerbutty & Anr. v. Emperor,
A.I.R. 1916 Cal. 47; Swaminatha Mudaliar v. Gopalakrishna Naidu, A.I.R.
1916 Mad. 1106; Taturam sahu v. The State of
Orissa, A.I.R.
1953 Orissa 96; Ram Das Gaur v. The City
Magistrate, Varanasi, 450 A.I.R. 1960 All. 397; and Ram Narain Sah & Anr. v.
Parmeshwar Prasad Sah & Ors., A.I.R. 1942 Pat. 414, approved.
Babulal Parate v. State of Maharashtra &
Ors., [1961] 3 S.C.R. 423 at 437; and Gulam Abbas & Ors. v. State of U.P.
& Ors.,[1981] 2 Cr. L.J. 1835 at 1862, referred to.
ORIGINAL JURISDICTION: Writ Petitions Nos.
6890, 7204 of 1982 and 3491 of 1983.
Under article 32 of the Constitution of India
Ram Jethmalani, V.M. Tarkunde and R. Dwivedi for the Petitioner.
M.K. Ramamurthi, D.P. Mukherjee and G.S.
Chatterjee for the Respondents State of West Bengal.
K.K. Venugopal, M/s. Inderjit Sen and G.S.
Chatterjee for the Respondent.
Danial A. Latiffi and R.S. Sodhi for the
Intervener, All India Lawyers Union.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. The petitioner in Writ Petition No. 6890/82, a monk of the
Ananda Marga and currently General Secretary, Public Relations Department of
the Ananda Marga Pracharak Sangh, has filed this petition under Article 32 of
the Constitution for a direction to the Commissioner of Police, Calcutta and
the State of West Bengal to allow processions to be carried in the public
streets and meetings to be held in public places by the followers of the Ananda
Marga cult accompanied by the performance of Tandava dance within the State of
West Bengal. There are two connected writ petitions being Writ Petition Nos.
7204/82 & 3491/83 by the Diocese Secretary of West Bengal Region and
another follower of Ananda Marga. All these Petitions raise this common
question and have been heard at a time. For convenience the petition by the
General Secretary, Public Relations Department of the Ananda Marga Pracharak
Sangh has been treated as the main petition and references in the judgment have
been confined to it.
451 In the original petition certain factual
assertions have been made and after counter affidavits were filed several
further affidavits have been placed before the Court on behalf of the
petitioner and counter affidavits too have been filed. Shorn of unnecessary
details, the averments on behalf of the respective contenders are as follows:
Shri Pravat Ranjan Sarkar otherwise known as
Shri Ananda Murti, founded a socio-spiritual organisation 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. In the initial period the Headquarters of this organisation was
located near Ranchi in the State of Bihar but later it has been shifted to a
place within the City of Calcutta in West Bengal. It has been pleased that
Ananda Marga contains no dogmatic beliefs and teaches the yogic and spiritual
science to every aspirant. In order to realise the Supreme, Ananda Marga does
not believe that it is necessary to abandon home, profession or occupation and
spiritual sadhana is possible at any place and concurrently with fulfilling all
duties and responsibilities of family life.
It has been pleased that Ananda Marga shows
the way and explains the methods for spiritual advancement and this helps man
to practice his dharma. According to the petitioner Lord Shiva had performed
Tandava Dance in 108 forms but Shaivite literature has given details of 64
kinds only. Seven forms out of these 64 appear to have been commonly accepted
and they are called Kalika, Gouri, Sandhya, Sambhara, Tripura, Urdhava and
Ananda. The first of these forms elaborates the main aspects of shiva while the
seventh, i.e. the Ananda Tandava portrays all the manifold responsibilities of
the Lord. Ananda Tandava is claimed to have taken place at Tillai, the ancient
name of Chidambaram now situated in the State of Tamil Nadu. It is the
petitioner's stand that the word Tandava is derived from the root Tandu which
means to jump about and Shiva was the originator of Tandava about 6500 years ago.
Ananda Murtiji, as the petitioner maintains, is the Supreme Father of the
Ananda Margis. It is customary for every Ananda Margi after being duly
initiated to describe Ananda Murtiji as his father. One of the prescriptions of
religious rites to be daily performed by an Ananda Margi is Tandava Dance and
this is claimed to have been so introduced from the year 1966 by the preceptor.
This dance is to be performed with a skull, a small, symbolic knife and a
Trishul. It is also customary to hold a lathi and a damroo. It is explained
that the knife or the sword symbolises the force which cuts through the fetters
of the mundane world and 452 allows human beings to transcend towards
perfection; the trishul or the trident symbolises the fight against static
forces in the three different spheres of human existence- spiritual, mental and
physical; the lathi which is said to be a straight stick stands out as the
symbol of straightforwardness or simplicity; the damroo is the symbol to bring
out rhythmic harmony between eternal universal music and the entitative sound;
and the skull is the symbol of death reminding every man that life is short
and, therefore, every moment of life should be utilised in the service of
mankind and salvation should be sought. The petitioner has further maintained
that Ananda Margis greet their spiritual preceptor Shri Ananda Murti with a
dance of Tandava wherein one or two followers use the skull and the symbolic
knife and dance for two or three minutes. At intervals processions are intended
to be taken out in public places accompanied by the Tandava dance as a
religious practice.
Though in subsequent affidavits and in the
course of argument an attempt was made by Mr. Tarkunde to assert that Ananda
Marga is a new religious order, we do not think there is any justification to
accept such a contention when it runs counter to the pleadings in paragraphs 4
and 17 of the writ petition. In paragraph 4 it was specifically pleaded that
"Ananda Marga is more a denomination than an institutionalised religion",
and in paragraph 17 it was pleaded that "Ananda Margis are
Shaivites..." We shall, therefore, proceed to deal with this petition on
the footing that, as pleaded by the petitioner, Ananda Marga is a religious
denomination of the Shaivite order which is a well known segment of Hindu
religion.
Though the petitioner had pleaded that
Tandava dance has been practiced and performed by every Ananda Margi for more
than three decades, it has been conceded in the course of the hearing that
Tandava Dance was introduced for the first time as a religious right for Ananda
Margis in or around 1966. Therefore, by the time of institution of this writ
petition the practice was at best prevalent for about 16 years.
The Commissioner of Police, respondent 1
before us is alleged to have made repetitive orders under section 144 of the
Code of Criminal Procedure, 1973 ('Code' for short) from August 1979, directing
that "no member of a procession or assembly of five or more persons should
carry any fire arms, explosives, swords, spears, knives, tridents, lathis or
any article which may be used as weapon of offence or any article likely to
cause annoyance to the 453 public, for example skulls..." A petition was
filed before the Calcutta High Court under Article 226 of the Constitution by
the General Secretary of Ananda Marga for a writ of mandamus against the
respondents for a direction not to interfere with or place restraints on the
freedom of conscience and free profession, practice and propogation of their
religion, including Tandava Dance, in matter No. 903 of 1980. The Calcutta High
Court rejected the said petition on September 23, 1980 and observed:
"It is open to anyone in this country to
practice any religion but the religious practice must not be inconsistent with
the susceptibility or sensibility or fairness or public order. Tandava dance as
such may not be objectionable. In the streets of Calcutta all kinds of
demonstrations and procession are being held every day which may on many
occasions cause disturbance to others and interrupt the free flow of traffic.
In spite of the same, such demonstrations and processions are allowed to take
place particularly every day by the authority concerned. If the petitioners or
any member of their group want to hold a procession or reception or
demonstration accompanied by any dance or music, that by itself may not be
objectionable. However, brandishing fire torches or skulls or daggers in the
public places including streets cannot come under the same category. Here other
things are involved. The interests of other members of the public are involved,
the sense of security of the others is also involved.
The authorities concerned have to keep in
mind the question of the feelings of other members of the public and the
question of the possibility of any attempt to retaliate or counter-act to the
same are also to be considered. Taking into consideration all these factors I
am of the opinion that the petitioners do not have any legal right and they
have not established any legal right to carry fire torches, skulls and daggers
in public places or public streets and do not intend to pass any order
entitling the petitioners to do so.
However, the petitioners shall be entitled to
go in procession or hold any demonstration without any such fire tourches,
daggers or skulls. However, this would be subject to prevailing law of the land
in the particular area. For example, in the High Court, Dalhousie Square and
Assembly order under section 144 454 of the Criminal Procedure Code is
promulgated from time to time. This order would not entitle the petitioners to
hold any such procession, demonstration in violation of such promulgation, if
any. This order would also not entitle the petitioners to hold any procession
or demonstration without the permission of the authority concerned when such
permission is required for such purposes under any existing law." On March
29, 1982, respondent 1 made a fresh order under s.144 of the Code wherein the
same restraints as mentioned in the earlier order were imposed. An application
for permission to take out a procession on the public street accompanied with
Tandava dance was rejected and that led to the filing of this petition.
The petitioner asserts that tandava dance is
an essential part of the religious rites of the Ananda Margis and that they are
entitled to practise the same both in private as also in public places and
interference by the respondents is opposed to the fundamental rights guaranteed
under Articles 25 and 26 of the Constitution. The order under s.144 of the Code
has been assailed mainly on the ground that it does not state the material
facts of the case though the statute requires such statement as a condition
precedent to the making of the order. Repetitive orders under s.144 of the
Code, it has been contended, are not contemplated by the Code and, therefore,
making of such orders is an abuse of the law and should not be countenanced.
Two separate returns have been made to the
rule nisi.
Respondent 1 has filed a counter affidavit
alleging that Ananda Marga is an organisation which believes in violence and if
Ananda Margis are permitted to carry open swords or daggers in public
processions it is bound, or likely, to disturb public peace and tranquillity
and is fraught with the likelihood of breach of public order and would affect
public morality. Carrying of human skulls and indulging in provocative dances
with human skulls is not only repulsive to public taste and morality, but is
bound, and is likely, to raise fears in the minds of the people particularly
children thereby affecting public order, morality, peace and tranquility. It
has been further pleaded that the petitioner, or for the matter of that, Ananda
Margis can have no fundamental right to carry weapons in the public, in
procession or otherwise, nor have they any right to perform tandava dance with
daggers and human skulls. It is stated that Ananda 455 Marga is a
politico-religious organisation started in 1961 by Shri Pravat Ranjan Sarkar
alias Sri Ananda Murti, who is a self-styled tantrik yogi. Reference has been
made to an incident of 1971 which led to prosecution of Sri Ananda Murti and
some of his followers. It is stated that militancy continues to be the main
feature of the organisation. Prior to promulgation of the prohibitory orders,
it has been pleaded, Ananda Margis took out processions carrying lethal weapons
like tridents, lathis as well as human skulls and knives from time to time and
caused much annoyance to the public in general and onlookers in particular, and
this tended to disturb public peace, tranquillity and public order. In spite of
the prohibitory orders in force from August 10, 1979, a procession was taken
out on the following day within the city of Calcutta by Ananda Margis with
lathis, tridents, Knives, skulls, and the procession became violent. The
assembly was declared unlawful and the police force was obliged to intervene.
The police personnel on duty including a Deputy Commissioner of Police received
injuries.
Reference to several other incidents has also
been made in the counter-affidavit of the Police Commissioner. The State
Government has supported the stand of the Police Commissioner in its separate
affidavit.
We have already indicated that the claim that
Ananda Marga is a separate religion is not acceptable in view of the clear
assertion that is was not an institutionalised religion but was a religious
denomination. The principle indicated by Gajendragadkar, CJ, while speaking for
the Court in Sastri Yagnapurushadji & Ors. v. Muldas Bhudardas Vaishya
& Anr., also supports the conclusion that Ananda Marga cannot be a separate
religion by itself. In that case the question for consideration was whether the
followers of Swaminarayan belonged to a religion different from that of
Hinduism. The learned Chief Justice observed:
"Even a cursory study of the growth and
development of Hindu religion through the ages shows that whenever a saint or a
religious reformer attempted the task of reforming Hindu religion and fighting
irrational or corrupt practices which had crept into it, a sect was born which
was governed by its own tenets, but which basically subscribed to the
fundamental notions of Hindu religion and Hindu philosophy. ' 456 The averments
in the writ petition would seem to indicate a situation of this type. We have also
taken into consideration the writings of Shri Ananda Murti in books like
Carya-Carya, Namah Shivaya Shantaya, A Guide to Human Conduct, and Ananda
Vachanamritam. These writings by Shri Ananda Murti are essentially founded upon
the essence of Hindu philosophy. The test indicated by the learned Chief
Justice in the case referred to above and the admission in paragraph 17 of the
writ petition that Ananda Margis belong to the Shaivite order lead to the clear
conclusion that Ananda Margis belong to the Hindu religion. Mr. Tarkunde for
the petitioner had claimed protection of Article 25 of the Constitution but in
view of our finding that Ananda Marga is not a separate religion, application
of Article 25 is not attracted.
The next aspect for consideration is whether
Ananda Marga can be accepted to be a religious denomination. In The
Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt, Mukherjee, J. (as the learned Judge then was),
spoke for the Court thus:
"As regards article 26, the first
question is, what is the precise meaning or connotation of the expression
'religious denomination' and whether a Math could come within this expression.
The word 'denomination' has been defined in the Oxford Dictionary to mean 'a
collection of individuals classed together under the same name: a religious
sect or body having a common faith and organisation and designated by a
distinctive name'." This test has been followed in The Durgah Committee,
Ajmer & Anr. v, Syed Hussain Ali & Ors. In the majority judgment in S.
P. Mittal etc. v. Union of India & Ors reference to this aspect has also
been made and it has been stated:
"The words 'religious denomination' in
Article 26 of the Constitution must take their colour from the word 'religion'
and if this be so, the expression 'religious denomination' must also satisfy
three conditions:
457 (1) It must be a collection of
individuals who have a system of beliefs or doctrines which they regard as
conducive to their spiritual well-being, that is, a common faith;
(2) common organisation, and (3) designation
by a distinctive name." Ananda Marga appears to satisfy all the three
conditions, viz., it is a collection of individuals who have a system of
beliefs which they regard as conducive to their spiritual well-being; they have
a common organisation and the collection of these individuals has a distinctive
name.
Ananda Marga, therefore, can be appropriately
treated as a religious denomination, within the Hindu religion. Article 26 of
the Constitution provides that subject to public order, morality and health,
every religious denomination or any section thereof shall have the right to
manage its own affairs in matters of religion. Mukherjea, J. in Lakshmindra
Thirtha Swamiar's case (supra) adverted to the question as to what were the
matters of religion and stated:
"What then are matters of religion ! The
word 'religion' has not been defined in the Constitution and it is a term which
is hardly susceptible of any rigid definition. In an American case (Davie v.
Benson, 133 US 333 at 342), it has been said "that the term 'religion' has
reference to one's views of his relation to his Creator and to the obligations
they impose of reverence for His Being and Character and of obedience to His will.
It is often confounded with cultus of form or worship of a particular sect, but
is distinguishable from the latter". We do not think that the above
definition can be regarded as either precise or adequate. Articles 25 and 26 of
our Constitution are based for the most part upon article 44(2) of the
Constitution of Eire and we have great doubt whether a definition of 'religion'
as given above could have been in the minds of our Constitution-makers when
they framed the Constitution. Religion is certainly a matter of faith with
individuals or communities and it is not necessarily theistic. There are well
known religions in India like Buddhism and Jainism which do not believe in God
or in any Intelligent First Cause. A religion undoubtedly 458 has its basis in
a system of beliefs or doctrines which are regarded by those who profess that
religion as conducive to their spiritual well being, but it would not be
correct to say that religion is nothing else but a doctrine or belief. A
religion may not only lay down a code of ethical rules for its followers to
accept, it might prescribe rituals and observances, ceremonies and modes of
worship which are regarded as integral parts of religion, and these forms and
observances might extend even to matters of food and dress..."
"Restrictions by the State upon free exercise of religion are permitted
both under Articles 25 and 26 on grounds of public order, morality and health.
Clause (2) (a) of article 25 reserved the right of the State to regulate or
restrict any economic, financial, political and other secular activities which
may be associated with religious practice and there is a further right given to
the State by sub-clause (b) under which the State can legislate for social
welfare and reform even though by so doing it might interfere with religious
practices .." "The contention formulated in such broad terms cannot,
we think, be supported. In the first place, what constitutes the essential part
of a religion is primarily to be ascertained with reference to the doctrines of
that religion itself. It 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 and the mere fact that they involve expenditure of money or
employment of priests and servants or the use of marketable commodities would
not make them secular activities partaking of a commercial or economic
character; all of them are religious practices and should be regarded as
matters of religion within the meaning of article 26(b)..." Courts have
the power to determine whether a particular rite or observance is regarded as
essential by the tenets of a particular 459 religion. In Laxshmindra Thirtha
Swamiar's case, Mukherjea, J. observed:
"This difference in judicial opinion
brings out forcibly the difficult task which a Court has to perform in cases of
this type where the freedom of religious convictions genuinely entertained by
men come into conflict with the proper political attitude which is expected
from citizens in matters of unity and solidarity of the State organization."
The same question arose in the case of Ratilal Panachand Gandhi v. State of
Bombay & Ors.(1) The Court did go into the question whether certain matters
appertained to religion and concluded by saying that "these are certainly
not matters of religion and the objection raised with regard to the validity of
these provisions seems to be altogether baseless." In Tilkayat Shri
Govindlalji Maharaj v. State of Rajasthan & Ors.,(2) this Court went into
the question as to whether the tenets of the Vallabh denomination and its
religious practices require that the worship by the devotees should be
performed at the private temples and, therefore, the existence of public
temples was inconsistent with the said tenets and practices, and on an
examination of this question, negatived the plea.
The question for consideration now,
therefore, is whether performance of Tandava dance is a religious rite or
practice essential to the tenets of the religious faith of the Ananda Margis.
We have already indicated that tandava dance was not accepted as an essential
religious rite of Ananda Margis when in 1955 the Ananda Marga order was first
established. It is the specific case of the petitioner that Shri Ananda Murti
introduced tandava as a part of religious rites of Ananda Margis later in 1966.
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 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. In paragraph 17 of the writ petition
the petitioner pleaded that "Tandava Dance lasts for a few minutes where
two or 460 three persons dance by lifting one leg to the level of the chest,
bringing it down and lifting the other." In paragraph 18 it has been
pleaded that "when the Ananda Margis greet their spiritual preceptor at
the airport, etc., they arrange for a brief welcome dance of tandava wherein
one or two persons use the skull and symbolic knife and dance for two or three
minutes." In paragraph 26 it has been pleaded that "Tandava is a
custom among the sect members and it is a customary performance and its origin
is over four thousand years old, hence it is not a new invention of Ananda
Margis." On the basis of the literature of the Ananda Marga denomination
it has been contended that there is prescription of the performance of tandava
dance by every follower of Ananda Marga. Even conceding that tandava dance has
been prescribed as a religious right for every follower of the Ananda Marg 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. Atleast none could be shown to us by Mr. Tarkunde despite an enquiry
by us in that behalf. 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 places is an essential religious rite to be performed by every Ananda
Margi.
Once we reach this conclusion, the claim that
the petitioner has a fundamental right within the meaning of Articles 25 or 26
to perform tandava dance in public streets and public places has to be
rejected. In view of this finding it is no more necessary to consider whether
the prohibitory order was justified in the interest of public order as provided
in Article 25.
It is the petitioner's definite case that the
prohibitory orders under s. 144 of the Code are being repeated at regular
intervals from August 1979. Copies of several prohibitory orders made from time
to time have been produced before us and it is not the case of the respondents
that such repetitive prohibitory orders have not been made.
The order under s. 144 of the Code made in
March 1982 has also been challenged on the ground that the material facts of
the case have not been stated. Section 144 of the Code.
as far as relevant, provides: "(1) In
cases where in the opinion of a District Magistrate, a Sub-Divisional
Magistrate, or any other Executive Magistrate specially empowered by the State
Government in this behalf, there is sufficient ground for proceeding under this
section and immediate prevention or speedy remedy is desirable, such Magistrate
may, by a 461 written order stating the material facts of the case and served
in the manner provided by section 134, direct..." It has been the
contention of Mr. Tarkunde that the right to make the order is conditioned upon
it being a written one and the material facts of the case being stated. Some High
Courts have taken the view that this is a positive requirement and the validity
of the order depends upon compliance of this provision. In our opinion it is
not necessary to go into this question as counsel for the respondents conceded
that this is one of the requirements of the provision and if the power has to
be exercised it should be exercised in the manner provided on pain of
invalidating for non-compliance. There is currently in force a prohibitory
order in the same terms and hence the question cannot be said to be academic.
The other aspect, viz., the propriety of repetitive prohibitory orders is,
however, to our mind a serious matter and since long arguments have been
advanced, we propose to deal with it. In this case as fact from October 1979 till
1982 at the interval of almost two months orders under s. 144(1) of the Code
have been made from time to time. It is not disputed before us that the power
conferred under this section is intended for immediate prevention of breach of
peace or speedy remedy. An order made under this section is to remain valid for
two months from the date of its making as provided in sub-section (4) of s.
144. The proviso to sub-s. (4) authorises the State Government in case it
considers it necessary so to do for preventing danger to human life, health or
safety, or for preventing a riot or any affray, to direct by notification that
an order made by a Magistrate may remain in force for a further period not
exceeding six months from the date on which the order made by the Magistrate
would have, but for such order, expired. The effect of the proviso, therefore,
is that the State Government would be entitled to give the prohibitory order an
additional term of life but that would be limited to six months beyond the two
months' period in terms of sub-s. (4) of s. 144 of the Code. Several decisions
of different High Courts have rightly taken the view that it is not legitimate
to go on making successive orders after earlier orders have lapsed by efflux of
time. A Full Bench consisting of the entire Court of 12 Judges in Gopi Mohun
Mullick v. Taramoni Chowdhrani(1) examining the provisions of s. 518 of the
Code of 1861 (corresponding to present s. 144) took the view that such an
action was beyond the Magistrate's powers. Making of successive orders was
disapproved by the Division Bench of the Calcutta High Court 462 in Bishessur
Chuckerbutty & Anr. v. Emperor.(1) Similar view was taken in Swaminatha
Mudaliar v. Gopalakrishna Naidu;(2) Taturam Sahu v. The State of Orissa;(3) Ram
Das Gaur v. The City Magistrate, Varanasi;(4) and Ram Narain Sah & Anr. v. Parmeshwar
Prasad Sah & Ors.(5) We have no doubt that the ratio of these decisions
represents a correct statement of the legal position. The proviso to sub-s. (4)
of s. 144 which gives the State Government jurisdiction to extend the
prohibitory order for a maximum period of six months beyond the life of the
order made by the Magistrate is clearly indicative of the position that
Parliament never intended the life of an order under s. 144 of the Code to
remain in force beyond two months when made by a Magistrate. The scheme of that
section does not contemplate repetitive orders and in case the situation so
warrants steps have to be taken under other provisions of the law such as s.
107 or s. 145 of the Code when individual disputes are raised and to meet a
situation such as here, there are provisions to be found in the Police Act. If
repetitive orders are made it would clearly amount to abuse of the power
conferred by s.144 of the Code. It is relevant to advert to the decision of
this Court in Babulal Parate v. State of Maharashtra & Ors.,(6) where the
vires of s. 144 of the Code was challenged. Upholding the provision, this Court
observed:
"Public order has to be maintained in
advance in order to ensure it and, therefore, it is competent to a legislature
to pass a law permitting an appropriate authority to take anticipatory action
or place anticipatory restrictions upon particular kinds of acts in an
emergency for the purpose of maintaining public order...." It was again
emphasized:
"But it is difficult to say that an
anticipatory action taken by such an authority in an emergency where danger to
public order is genuinely apprehended is anything other than an action done in
the discharge of the duty to maintain order..." 463 This Court had,
therefore, appropriately stressed upon the feature that the provision of s. 144
of the Code was intended to meet an emergency. This postulates a situation
temporary in character and, therefore, the duration of an order under s. 144 of
the Code could never have been intended to be semi-permanent in character.
Similar view was expressed by this Court in
Gulam Abbas & Ors. v. State of U.P. & Ors., where it was said that
"the entire basis of action under s. 144 is provided by the urgency of the
situation and the power thereunder is intended to be availed of for preventing
disorders, obstructions and annoyances with a view to secure the public weal by
maintaining public peace and tranquillity ...." Certain observations in
Gulam Abbas's decision regarding the nature of the order under s. 144 of the
Code-judicial or executive-to the extent they run counter to the decision of
the Constitution Bench in Babulal Parate's case, may require reconsideration
but we agree that the nature of the order under s. 144 of the Code is intended
to meet emergent situation. Thus the clear and definite view of this Court is
that an order under s. 144 of the Code is not intended to be either permanent
or semi-permanent in character. The concensus of judicial opinion in the High
Courts of the country is thus in accord with the view expressed by this Court.
It is not necessary on that ground to quash the impugned order of March 1982 as
by efflux of time it has already ceased to be effective.
It is appropriate to take note of the fact
that the impugned order under s. 144 of the Code did not ban processions or
gatherings at public places even by Ananda Margis. The prohibition was with
reference to the carrying of daggers, trishuls and skulls. Even performance of
tandava dance in public places, which we have held is not an essential part of
religious rites to be observed by Ananda Margis, without these, has not been
prohibited.
The writ petitions have to fail on our
finding that performance of tandava dance in procession in the public streets
or in gatherings in public places is not an essential religious rite of the
followers of Ananda Marga.
In the circumstance there will be no order as
to costs.
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