Author Name:   rohit.nuals

AIR 1984 SC 51 Consideration of scope of prohibitory order under s.144 Cr.P.C. and also essential religious practice.

Case Commentary : Acharya Jagdishwaranand Avadhuta and Ors v. Commissioner of Police, Calcutta and Anr, AIR 1984 SC 51
Corum: A. N. Sen, P. N. Bhagwati and Ranganath Misra, JJ AIR 1984 SC 51

Facts:
A writ petition under article 32 was filed before the supreme court seeking issuance of direction to the Commissioner of Police Calcutta and the State of West Bengal to allow processions by, the followers of the Ananda Marga cult, to be carried in the public streets and meetings to be held in public places accompanied by the performance of Tandava dance within the State of West Bengal. The case involved 3 petitions by - General Secretary, Public Relations Department of the Ananda Marga Pracharak Sangh; the Diocese Secretary of West Bengal Region and an orfinary follower of Ananda Marga.

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. The Headquarters of this organisation was located in a place within the City of Calcutta in West Bengal. Ananda Marga teaches the yogic and spiritual science to every aspirant. In this case it was pleaded that Ananda Marga shows the way and explains the methods for spiritual advancement and this helps man to practice his dharma. 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. The knife or the sword, according to Anand Margi’s symbolises the force which cuts through the fetters of the mundane world and 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. At intervals processions are intended to be taken out in public places accompanied by the Tandava dance as a religious practice.

The Commissioner of Police [respondent 1] made repetitive orders Under Section 144 of the CrPC, 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...."

On March 29, 1982, respondent 1 made a fresh order Under Section 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 before the supreme court..

It was contended on behalf of the respondents that militancy continues to be the main feature of the organisation. And that Prior to promulgation of the prohibitory orders, 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. It was also pointed out by the respondents that 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.

· Whether ananda Marga is a religion or denomination
· Whether tandava dance forms part of essential religious practice of Ananda Marga belief
· Whether phohibitory orders issued were valid

• A Religion?
The petitioners tried to assert that Ananda Marga was new religious order, but the court held that there is no justification in such a contention. The court went on to consider Ananda Marga as a religious denomination of the Shaivite order which is a well-known segment of Hindu religion. The court clearly asserted that Ananda Marga was not an institutionalised religion but was a religious denomination. The court in determination of whether Ananda Marga was a separate religion or not, took into consideration books written by Ananda Murt,i which the court found to be, essentially founded upon the essence of Hindu philosophy. The court also took into consideration the point maintained in Sastri Yagnapurushadji and Ors. v. Muldas Bhudardos Vaishya and Anr that :

“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.”

To hold that Ananda Marga is not a religion

• A Religious Denomination?
While dealing with the consideration as to whether Ananda Marga can be termed as a denomination of hindu religion, the court took into consideration to point highlighted in Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt which maintained that:

“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'.”

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:

(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.

The court in this case held that all these 3 conditions are satisfied by the Ananda Marga and therefore, it can be treated as a religious denomination under the Hindu religion.

What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. The Courts have the power to determine whether a particular rite of observance is regarded as essential by the tenets of a particular religion. The question considered by the court wass whether performance of Tandava dance is a religious rite or practice essential to the tenets of the religious faith of the Ananda Margis. The court pointed out that that tandava dance was not accepted as an essential religious rite of Ananda Margis when in 1955 the Ananda Marga order was first established. Shri Ananda Murti introduced tandava as a part of religious rites of Ananda Margis later in 1966. Ananda Marga as a religious order was of recent origin and tandava dance as a part of religious rites of that order was still more recent. The practice was at best prevalent for about 16 years. The court held that 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. The court refused to accept the contention that performance of tandava dance in public was an essential religious right of the denomination.

Owing to these findings, the court concluded that petitioner has no fundamental right within the meaning of Articles 25 or 26 to perform tandava dance in public streets and public places.

The petitioners also had a case that the prohibitory orders Under Section 144 of the Code are being repeated at regular intervals from August 1979, was not valid on the ground that the material facts of the case have not been stated. S.144(1) CrPC provides that such orders should contain the material facts of the case. But it was not done in this case. It was contended by the petitioners that the right to make the order is conditioned upon it being a written one and the material facts of the case being stated. This contention was also accepted by the respondents. With regards to the repetitive prohibitory orders the court held that the proviso to Sub-section (4) of Section 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 Section 144 of the Code to remain in force beyond two months when made by a Magistrate. If repetitive orders are made it would clearly amount to abuse of the power conferred by Section 144 of the Code. The court pointed out that the provision of Section 144 CrPC was intended to meet an emergency and that it postulates a situation temporary in character and, therefore, the duration of an order Under Section 144 of the Code could never have been intended to be semi-permanent in character.

The court in a final note also pointed out that the impugned orders under S.144 CrPC prohibited only those proceedings and activities with reference to the carrying of daggers, trishuls and skulls and that even thandava dance, even though declared as not being an an essential part of religious rites to be observed by Ananda Margis, was not banned by these orders.

· Tandava dance is not an essential part of religious rites to be observed by Ananda Margis.

· An order Under Section 144 of the Code could never have been intended to be semi-permanent in character – an order under this section can be only extened to a period of six months in addition to the two months of life period attached to the order, when made by the magistrate.

An Analysis of The Judgment
By declaring that tandava dance was not an essential part of the belief of the Ananda margi’s the Apex court of the country has served justice to its citizens. It would have, otherwise, created a situation in the legal scenario of the country where any man with a bunch of followers at his command creating new religions and denominations, with practices that these groups would consider as essential to their beliefs. In the instant case, tandava dance performed by the Ananda Margi’s for a short period of time, was argues to be essential part of their belief. The dance, as stated in this case, is to be performed with a skull, a small, symbolic knife and a Trishul. Allowing such a practice to continue unrestricted would have created a havoc in the society, if not for proper checks and balances be placed on these activities. The right to practice and propagate once belief, as provided in the constitution should never be deemed as an ultimate right. One has to keep in mind that one’s right ends at the tip of the neighbor’s nose. Allowing tandava dance to be performed as such would mean annoyance be caused to the public in general and onlookers in particular, and this tending to disturb public peace, tranquillity and public order. If such practices of belief’s that bud up overnight were permitted, it would mean the end of means to restrict such activities. As the Apex Court has decided this case in this manner, it would help in future to prevent outbursts of new practices of religions or denominations that would occur in an unhealthy or anti-social manner.

While deciding as to whether a practice is an essential practice or not, the courts are to do that with extreme caution. Only those practices that go to the core belief and rituals of the religion should be granted the status of an essential practice of the religion. While dealing with such a question as to whether a practice is essential or not, the Supreme Court in the instant case was correct in going in to a consideration of the time for which the practice was prevalent as a part of the religion/belief. Such a consideration would help to decide as to whether a practice in question was not one that was not important to the practicing and propagation of the belief. Only the essential practices of the religion are protected from interference from bodies of the government. Granting the status of an essential practice to practices that do not deserve to be given such status may prove detrimental in the long run. Therefore the Supreme Court in the instant case was correct in looking in to the time for which the practice of thandava dance was prevalent in the society as a part of the belief of the Anand Margi’s. The Supreme Court, as a result, was also correct in reaching the conclusion that thandava dance was not an essential practice of the Anand Margis, relying on the time period for which the practice was prevalent.

Even in consideration of the second aspect laid down by the Supreme Court in this case as to orders issued under 144 Cr.P.C stands correct. Such orders can never be intended to be issued with a permanent character. They are to be only temporary in nature. Extending the time frame for which they are to be in force by subsequent new orders would amount to plain violation of the rights of the people. If no proper time frame is setup for the continuance of such orders, there is a high chance that this provision may be used as a tool for suppression of the rights of the citizens. Such a policy should never be promoted – the rights of people should be respected. If the government is to deal with a situation of importance as has occurred in the instant case, rather that the use of order under 144 Cr.P.C, the government may resort to bringing in a legislation for that purpose.

Every person will have their rights and authorities their powers & duties, in exercise of these rights, powers or duties, the person/authority must always keep in mind the rights of other person and the true nature, scope and objective of such rights, powers or duties. The judgment in the instant case can be quoted as one by the court that has been delivered keeping in mind all the questions at hand and with a clear mindset of giving justice to the citizens.
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# [1966]3SCR242
# [1954] 1 SCR 1005
# S. P. Mittal etc. v. Union of India and Ors, [1933] 1 S.C.R. 729

The  author can be reached at: rohit.nuals@legalserviceindia.com

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