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SC ruling on Anand Margis kicks up debate

TNN Mar 22, 2004

NEW DELHI: A divided Supreme Court ruling that Anand Margis would not be allowed to carry skulls, tridents and perform tandav dance during their religious processions is set to trigger a debate. Can the judiciary prohibit rituals practised by different religious denominations on the ground that they go against the Constitution? While two judges upheld the restriction on the Anand Margis' tandav dance, Justice A R Lakshmanan's dissenting judgment has the potential of kicking up a debate on the issue. Article 25(1) guarantees freedom of conscience and the right to freely profess, practice and propagate any religion. But this freedom is not absolute. It is subject to restrictions on grounds of public order, morality and health. The SC judgment was a fallout of the West Bengal government's appeal against a Calcutta High Court order allowing the Anand Margis to carrying skulls, trishuls and perform tandav dance in their processions. The government said the sect had no fundamental right to carrying such objects and perform the dance which could be repulsive and might cause fear in the minds of children. The Margis contended that the two-minute ritual would not cause anything of that sort. Moreover, it was an integral part of their religion. Religion is not defined in the Constitution. The Supreme Court has, however, offered various interpretations of religion. It has held that Hinduism is a way of life. It has declared that secularism is the basic feature of the Constitution. Thus, it held in the Jehovah's Witnesses' case that children of those believing in the Jehovah's Witnesses faith need not stand up to sing the National Anthem in school assemblies. While deciding whether slaughtering a cow was the fundamental right of a section of Muslims in 1959, the court struck a balance between the fundamental rights of butchers to occupation and slaughtering of cows, an activity claimed to be part of the Islamic faith. Justice Lakshmanan said while prohibiting indiscriminate slaughter of cows, the apex court did two things. First, Muslim sentiments were respected and butchers retained a large part of their trade. Two, it held that cow slaughter was not an "essential practice of Islam". What would constitute an essential part of religious practice is to be determined with reference to the doctrine of a particular religion, which includes practices that are regarded by the community as part and parcel of that religion.

In Justice Lakshmanan's words, the test has to be applied by courts whether a particular religious practice is regarded by the community practicing it as an integral part of the religion or not. Sikhs can carry kirpans as a symbol of their religious practice and the Gurkhas the kukris or daggers. So also, the Hindus are permitted to carry trishuls in procession. Persons professing the Islamic faith are allowed to take out processions during Moharrum and beat their chest with hands and chains and inflict injuries on them. If all such practices are permitted, why not the carrying of skulls and performing the tandav dance by the Anand Margis?