Topic: Acharya Jagdisharanand Avadhut v Police Commissioner - 144 crpc

Acharya Jagdisharanand Avadhut v Police Commissioner
Equivalent citations: 1984 AIR 512, 1984 SCR (1) 447 - 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)

An order under section 144 cannot be of a permanent or a semi-permanent nature
The Supreme Court held:
"The Parliament never intended the life on an order under section 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 when individual disputes are raised. If repetitive orders are made it would clearly amount to abuse of the power conferred by section 144 of the Code."

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 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

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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.

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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]

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,

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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:

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.

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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 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

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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

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public, for example skulls..."     A petition was filed before the Calcutta    High Court under Article 226 of the 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 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

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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 basically subscribed to the fundamental     notions of Hindu religion and Hindu philosophy. '

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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 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

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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

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religion. In Laxshmindra Thirtha Swamiar's case, Mukherjea, 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 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 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 462

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 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