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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.