Commissioner
of Police & Ors Vs. Acharya J. Avadhuta and Anr [2004] Insc 159 (11 March 2004)
S. Rajendra
Babu & G.P. Mathur Rajendra Babu, J. :
This
is second round of litigation. In the first round of litigation question raised
before this Court was whether performance of Tandava dance in public is an
essential practice of Ananda Margi order or not. This court in Acharya Jagdishwaranda
Avadhuta & Others v. The Commissioner of Police, Calcutta & Another,
(1983) 4 SCC 522, (First Ananda Margi case), held that Tandava dance in public
is not an essential rite of Ananda Margi faith. Subsequent to the first case,
it appears that Ananda Murti Ji founder of that order prescribed to perform Tandava
dance in public as an essential religious practice in Carya Carya, a book
containing the relevant doctrines.
Based
on this, Ananda Margis sought permission of the Commissioner of Police to
perform Tandava dance in public. The Commissioner accorded permission to take
out Tandava dance without knife, live snake, trident or skull.
This
was challenged by the Respondents herein before this Court by filing Writ
Petition (Civil) Nos 1317-18 of 1987.
This
Court with the following observation disposed it of:
"We
are of the view that these cases should appropriately be examined by the High
Court keeping in view that has been said by this Court in the Judgment in Acharya
Jagdishwaranda Avadhuta & Others v. The Commissioner of Police, Calcutta & Another reported in (1984) 1
SCR 447. Petitioners are at liberty to go before High Court." Firstly a
Single Judge and subsequently a Division Bench of the Calcutta High Court
arrived at the conclusion that taking out Tandava dance in public carrying
skull, trident etc is an essential part of Ananda Margi faith and Commissioner
of Police could not impose conditions to it.
This
decision is now under challenge.
When
this matter came up for consideration before this Court, a Bench of two learned
Judges made an order on 13.11.1992 as follows:- "After hearing the parties
for sometime and having considered the decision of the three learned Judges of
this Court in Acharya Jagdishwaranand Avadhuta etc. vs. Commissioner of Police,
Calcutta & Anr. {1984 (1) SCR 447}. we are of the view that this is a
matter which requires consideration by a Constitution Bench of this Court.
Hence, we request the learned Chief Justice to constitute the Bench as early as
possible for hearing of the matter".
On
4.12.2001 a Constitution Bench of this Court considered this matter and noticed
that (i) that the Bench does not express any difficulty in following the
earlier judgment, (ii) that they do not set out any substantial question of law
which requires the decision of a Constitution Bench since that order merely
stated that the matter should be heard and decided by a Constitution Bench. The
Constitution Bench felt that in those circumstances there was no justification
for hearing the appeal by the Constitution Bench and therefore placed the
matter back before the two learned Judges for final disposal who in their turn made
a reference to a Bench of three Judges.
The
relevant question herein for consideration is whether the High Court is correct
in it's finding that Tandava dance is an essential and integral part of Ananda
Margi faith based on the revised edition of Carya Carya. A bench consisting of
three judges of this Court in first Ananda Margi case arrived at a unanimous
conclusion on facts that Tandava dance in public is not an essential and
integral part of Ananda Margi faith. In order to arrive at this conclusion this
Court inter alia took the following four aspects into account.
1. Shri.
Prabhat Ranjan Sarkar otherwise known as Shri Ananda Murti, founded a
socio-spiritual organization claimed to have been dedicated to the service of
humanity in different spheres of life such as physical, mental and spiritual,
irrespective of caste, creed or colour, in the year 1955.
2. Ananda
Marga contains no dogmatic beliefs and teaches the yogic and spiritual science
to every aspirant.
3. Tandava
dance was not accepted as an essential religious rite of Ananda Margis in 1955
when that order was first established. It was introduced for the first time as
a religious rite in or around 1966.
4. Ananda
Marga is a religious denomination of the Shiviate order, which is a well-known segment
of Hindu religion.
After
taking into account of all the relevant facts, including the above, this Court
held:
"Ananda
Marga as a religious order is of recent origin and Tandava dance as a part of
religious rites of that order is still more recent.
It is
doubtful as to whether in such circumstances Tandava dance can be taken as an
essential religious rite of the Ananda Margis. Even conceding that is so, it is
difficult to accept Mr. Tarkunde's argument that taking out religious
processions with Tandava dance is an essential religious rite of Ananda MargisOn
the basis of the literature of the Ananda Marga denomination it has been
contended that there is prescription of performance of Tandava dance by every
follower of Ananda Marga.
Even
conceding that Tandava dance has been prescribed as a religious rite for every
follower of the Ananda Marga it does not follow as a necessary corollary that Tandava
dance to be performed in the public is a matter of religious rite" By the
above finding this Court was categorical in it's judgment that Tandava dance in
public is not an essential part of religious rites of Ananda Margi faith. The
conclusion arrived at by this Court regarding the non essential nature of Tandava
dance to Ananda Margi faith was principally based on the fact that the order
itself is of recent origin and the practice of dance is still more recent.
Court
even went to the extent of assuming that Tandava dance was prescribed as a rite
and then arrived at the conclusion that taking out Tandava dance in public is
not essential to Ananda Margi faith. After arriving at the above ratio, the
Court further added that "In fact, there is no justification in any of
the writings of Shri Ananda Murti that Tandava dance must be performed in
public. At least none could be shown to us by Mr. Tarkunde despite an enquiry
by us in that behalf." This observation cannot be considered as a clue to
reopen the whole finding. By making that observation the Court was only
buttressing the finding that was already arrived at. The learned judges of the
High Court wrongly proceeded on the assumption that the finding of this Court
regarding the non-essential nature of Tandava dance to the Ananda Margi faith
is due to the non-availability of any literature or prescriptions by the
founder. The High Court is under the wrong impression that an essential part of
religion could be altered at any subsequent point of time.
The
protection guaranteed under Articles 25 and 26 of the Constitution is not
confined to matters of doctrine or belief but extends to acts done in pursuance
of religion and, therefore, contains a guarantee for rituals, observances,
ceremonies and modes of worship which are essential or integral part of
religion. What constitutes an integral or essential part of religion has to be
determined with reference to its doctrines, practices, tenets, historical
background etc. of the given religion. (See generally the Constitution bench
decisions in The Commissioner v. L T Swamiar of Srirur Mutt 1954 SCR 1005, SSTS
Saheb v. State of Bombay 1962 (Supp) 2 SCR 496, and Seshammal v. State of Tamilnadu
(1972) 2 SCC 11, regarding those aspects that are to be looked into so as to
determine whether a part or practice is essential or not).
What
is meant by 'an essential part or practices of a religion' is now the matter
for elucidation. Essential part of a religion means the core beliefs upon which
a religion is founded. Essential practice means those practices that are
fundamental to follow a religious belief. It is upon the cornerstone of
essential parts or practices the superstructure of religion is built. Without
which, a religion will be no religion. Test to determine whether a part or
practice is essential to the religion is to find out whether the nature of
religion will be changed without that part or practice. If the taking away of
that part or practice could result in a fundamental change in the character of
that religion or in its belief, then such part could be treated as an essential
or integral part. There cannot be additions or subtractions to such part. Because
it is the very essence of that religion and alterations will change its
fundamental character. It is such permanent essential parts is what is
protected by the Constitution. No body can say that essential part or practice
of one's religion has changed from a particular date or by an event. Such
alterable parts or practices are definitely not the 'core' of religion where
the belief is based and religion is founded upon. It could only be treated as
mere embellishments to the non- essential part or practices.
Here
in this case Ananda Margi order was founded in 1955. Admittedly, Tandava dance
was introduced as a practice in 1966. Even without the practice of Tandava
dance (between 1955 to 1966) Ananda Margi order was in existence. Therefore, Tandava
dance is not the 'core' upon which Ananda Margi order is founded. Had Tandava
dance been the core of Ananda Margi faith, then without which Ananda Margi
faith could not have existed.
There
is yet another difficulty in accepting the reasoning of the High Court that a
subsequent addition in Carya Carya could constitute Tandava dance as essential
part of Ananda Margi faith. In a given case it is for the Court to decide
whether a part or practice is an essential part or practice of a given
religion. As a matter of fact if in the earlier litigations the Court arrives
at a conclusion of fact regarding the essential part or practice of a religion it
will create problematic situations if the religion is allowed to circumvent the
decision of Court by making alteration in its doctrine. For example, in N Adithayan
v. Travancore Devaswom Board (2002) 8 SCC 106, this Court found that a non-brahmin
could be appointed as a poojari (priest) in a particular temple and it is not
essential to that temple practice to appoint only a brahmin as poojari. Is it
open for that temple authorities to subsequently decide only brahmins could be
appointed as poojaris by way of some alterations in the relevant doctrines? We
are clear that no party could ever revisit such a finding of fact. Such an
attempt will result in anomalous situations and could only be treated as a
circuitous way to overcome the finding of a Court. If subsequent alterations in
doctrine could be allowed to create new essentials, the judicial process will
then be reduced into a useless formality and futile exercise. Once there is a
finding of fact by the competent Court, then all other bodies are estopped from
revisiting that conclusion. On this count also the decision of High Court is
liable to be set aside.
In the
result, we respectfully adopt the finding of this Court in the first Ananda
Margi case and allow the instant appeal. Since we find that practice of Tandava
dance in public is not an essential part of Ananda Margi faith, there is no
need to look into any other arguments advanced before us. The order in the Writ
Petition as affirmed by the Division Bench is set aside and the Writ Petition
is dismissed.
Before
parting with this matter, it is necessary for us to refer to the observations
made by this Court in Bijoe Emmanuel & Ors. v. State of Kerala & Ors., 1986 (3) SCC 615,
because reference to three Judges' Bench has arisen on account of these
observations. In Bijoe Emmanuel's case (supra) this Court adverted to the
decision of this Court in the earlier round of litigation in First Ananda Margi
case (supra) and observed as follows :- "The question in that case was
whether the Ananda Margis had a fundamental right within the meaning of Article
25 or Article 26 to perform Tandava dance in public streets and public places.
The court found that Ananda Marga was a Hindu religious denomination and not a
separate religion. The court examined the question whether the Tandava dance
was a religious rite or practice essential to the tenets of the Ananda Marga
and found that it was not.
On
that finding the court concluded that the Ananda Marga had no fundamental right
to perform Tandava dance in public streets and public places. In the course of
the discussion, at one place, there is found the following sentence :
'Mr. Tarkunde
for the petitioner had claimed protection of Article 25 of the Constitution but
in view of our finding that Ananda Marga was not a separate religion,
application of Article 25 is not attracted.' The sentence appears to have crept
into the judgment by some slip. It is not a sequiter to the reasoning of the
court on any of the issues. In fact, in the subsequent paragraphs, the Court
has expressly proceeded to consider the claim of the Ananda Marga to perform Tandava
dance in public streets pursuant to the right claimed by them under Article
25(1)." We respectfully agree with what has been stated above in Bijoe
Emmanuel's case (supra) insofar as the First Ananda Margi case is concerned. As
noticed therein, these observations are not the basis of the reasoning of the
court on any of the issues. Therefore, it would not affect the final outcome of
the case.
The
appeal is allowed accordingly.
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