Full Judgment Text
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PETITIONER:
ACHARYA JAGDISHWARANAND AVADHUTA, ETC.
Vs.
RESPONDENT:
COMMISSIONER OF POLICE, CALCUTTA & ANR.
DATE OF JUDGMENT20/10/1983
BENCH:
MISRA RANGNATH
BENCH:
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
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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]
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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.
JUDGMENT:
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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 pleaded 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 pleaded 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
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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 rite 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
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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 any one 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
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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
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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
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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,
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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
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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 rite 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
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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
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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
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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
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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..."
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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
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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.
H.S.K. Petitions dismissed
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