Full Judgment Text
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CASE NO.:
Appeal (civil) 6230 of 1990
PETITIONER:
Commissioner of Police & Ors.
RESPONDENT:
Acharya J. Avadhuta And Anr.
DATE OF JUDGMENT: 11/03/2004
BENCH:
S. RAJENDRA BABU & G.P. MATHUR
JUDGMENT:
J U D G M E N T
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 \026 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
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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:
"\005Ananda 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 Margis\005On
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\005"
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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 \026
"\005In 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 \026 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
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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 \026
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
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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.