Details Case- PUBLIC INTEREST LITIGATION (PIL) No. - 840 of 2020
Name of the Case- Roshan Khan And 2 Others vs State Of U.P. And 4 Others
With
Case- PUBLIC INTEREST LITIGATION (PIL) No. - 841 of 2020
Name of the Case- Japhar Abbas vs Union Of India And 2 Others
With
Case- PUBLIC INTEREST LITIGATION (PIL) No. - 842 of 2020
Name of the Case- Syed Zeeshan Mehdi vs Principal Secretary And 2 Others
With
Case- PUBLIC INTEREST LITIGATION (PIL) No. - 848 of 2020
Name of the Case- Syed Shabbir Shaukat Abdi Alias Shaukat Bharti And 3 Others vs State Of U.P. And 3 Others
Coram- Hon'ble Shashi Kant Gupta,J. & Hon'ble Shamim Ahmed,J.
Order Date- 29.08.2020
Since the controversy raised in all the aforesaid Writ Petitions is identical, they are being decided by a common order, treating Public Interest Litigation (Roshan Khan and Others Versus State of U.P. and others) as the leading case.
Prayer of the Petitioner
In sum and substance, the Petitioners seek to challenge the Government Orders dated 10.08.2020 and 23.08.2020 passed by the State Government, in so far as they prohibit the petitioners and members of their community, from taking out the Moharram Processions, and further seek the issuance of a direction to the Respondent Authorities to permit them to perform religious mourning rituals/practice connected with Moharram, during the period of ten days i.e. up to 30.08.2020, amid the pandemic restrictions in the State of Uttar Pradesh.
Submission of the Petitioners
The main thrust of the argument of the learned counsel for the petitioners is that Government Orders issued by State of Uttar Pradesh dated 10.08.2020 and 23.08.2020 are discriminatory in nature, insofar as they provide for a complete ban in taking out the Moharram processions. It has been further submitted that such guidelines are discriminatory, targeting only one community in particular. In support of his contention, he has referred to the Guidelines dated 29.07.2020, issued by the Government of India, Ministry of Home Affairs as well as Government Orders issued by the State Government dated 10.08.2020 as well as 23.08.2020. Relevant portions of Government Orders dated 10.08.2020 and 23.08.2020 are quoted.
Learned counsels for the petitioners have further submitted that Hon’ble Apex Court had allowed the devotees access to the places of worship and permitted the Annual Chariot Procession at the Jagganath Temple, Puri besides recently permitting the offer of Paryushan prayers in three Jain Temples in Mumbai. It is further submitted that the prohibition is arbitrary especially when the proposed rituals can be regulated by prescribing reasonable restrictions, like limiting the number of people to carry out the Taziyas till Karbala for burial. It was submitted that in this way neither there would be transmission of Covid-19 infections nor would any chaos be created.
Submission of the Respondent
Per contra, learned Additional Chief Standing Counsel appearing on behalf of the State has strongly opposed the contention so made by the learned counsel for the petitioners. It was vehemently argued by him that the aforesaid Government Orders are in no way discriminatory in nature. While referring to the Government Orders dated 10.08.2020 and 23.08.2020, it was argued that restrictions have also been imposed upon the Hindu community and they have been prohibited from raising any Pooja Pandals or installing any statues/idols or even taking out processions during the festival of Ganesh Chaturthi and the devotees were encouraged to celebrate the festival in their respective homes. Likewise, the Muslim community has also been restricted from taking out any Taziyas or processions, in order to prevent the spread of Covid-19. He further submitted that restrictions have been imposed on all the communities.
Learned Standing Counsel also referred Clause 5 of the Notification dated 29.07.2020 of the Central Government, wherein the States/Union Territories (UTs) have been duly empowered to prohibit certain activities outside the Containment Zones or impose such restrictions as deemed necessary, based on their assessment of the situation.
He further submitted that the State Government considering the rapid surge of Covid-19 cases in the State of Uttar Pradesh, issued Guidelines on 10.08.2020, directing all the concerned Officers of the State to prohibit any kind of procession, falling in the month of August, 2020 for example Janmashtami, Ganesh Chaturthi and Morahham, as such, the State Government has imposed restrictions/ban on any kind of procession, across all communities, without any discrimination. He further submitted that the drastic step of prohibition has been taken for all communities, on account of the extraordinary situation created due to the pandemic and, therefore, in the given circumstances the total prohibition is reasonable and not violative of the fundamental rights of the petitioners or members of the any community, as sought to be alleged.
It was further argued that in case the petitioners are permitted to take out processions or Taziyas for burial at the Karbala, it may lead to chaos and an uncontrollable surge of the pandemic.
Learned Standing Counsel further stated that the Division Bench of this Court in Public Interest Litigation (Dr. Mohammad Ayub Versus State of U.P. and others) vide its judgment dated 29.07.2020 had dismissed the writ petition, wherein a relief was sought for relaxing the guidelines for the festival of Eid-ul-Adha.
He further referred to the decision of the Hon’ble Apex Court in the case of Odisha Vikash Parishad Vs. Union of India and others, wherein in paragraph no. 9 of the judgment the Hon’ble Apex Court has observed as follows:
The bare minimum number of people shall be allowed by the Committee to participate in the rituals and in the Rath Yatra. The State of Orissa has a good record of having controlled the pandemic with a very little loss of life. There is no reason why the same attitude of care and caution should not be applied to the Rath Yatra.”
Issues before the Court
That in view of the aforesaid contentions, the issues that arise for determination before this Court are:
- Whether the impugned Government Orders are arbitrary and discriminatory inasmuch as they seek to target a particular community?
- Whether the complete prohibition on carrying out processions or Taziyas on 30.08.2020, violates the Fundamental Right to practice and profess religion guaranteed under Part III of the Constitution of India and whether the rituals ought to be permitted by imposition of reasonable restrictions instead?
- Whether in view of the prevalent situation of the pandemic, the imposition of complete prohibition from carrying out processions or Taziyas on 30.08.2020, is reasonable and justified?
Observation of the Court
With regard to the first issue it may be noted that the main thrust of the argument of the learned counsel for the petitioners has been that restrictions imposed by the State Government are discriminatory in nature and only one community has been targeted in the aforesaid Government Order. This argument advanced by the learned counsel for the petitioner has no legs to stand on and appears to be patently misconceived.
A bare perusal of the Notifications dated 10.08.2020 and 23.08.2020, issued by the State Government, clearly indicates that the same yardstick has been adopted for all religious communities and they have been restricted from carrying on any processions or Jhankis or activities that have a danger of large congregations that may lead to a spread of the pandemicCovid-19. Regard may be had to Clause (2) of the Notification dated 10.08.2020, that clearly indicates that no processions or Jhankis have been permitted during the Janmastami festival. Similarly, Clause (3) of the said Notification also indicates that during the Festival for Ganesh Chaturthi too, the Hindu community has been prohibited from erecting any Pooja Pandals and from installing any statues/idols. Likewise, the Muslim community has been prohibited from taking out processions/Tazias during Moharram.
Thus, it is clear that in view of controlling the spread of Covid-19, the State Government has imposed a complete prohibition on all religion activities that may involve a large conglomeration of people, across communities, and as such the government orders are not discriminatory nor do they target any Community, in particular.
Since the Second and the Third issues are interrelated, they are being dealt with together. The contention of the learned counsel for the petitioners is that the total prohibition imposed on the processions and carrying out Tazias is completely arbitrary especially when reasonable restrictions could easily be imposed, keeping in mind the Guidelines, issued by the Government for prevention of spread of Covid-19. It is therefore accepted that with the prevalent rate of transmission in Uttar Pradesh, large processions cannot be permitted and certain restrictions are necessary for controlling the spread of the pandemic.
It has further been sought to be urged that even the Hon’ble Apex Court had allowed the devotees to access the place of worship and permitted the Annual Chariot procession (Rath Yatra) of Jagganath Temple, Puri and further permitted to offer Paryushan prayer in three Jain Temples in Mumbai, then the petitioners, too must be permitted to carry out procession during Moharram.
In this regard it may be noted that the Apex Court had not passed any general directions, but the permission to carry out the Annual Chariot Procession (Rath Yatra), pertained to a specific place, Puri, and only from one point to another. Further, the intensity of Covid-19 spread in Orissa, was also duly noted by the Hon’ble Apex Court, while granting the permission.
However, the present case, is clearly distinguishable from the aforesaid cases since it pertains to the entire State of Uttar Pradesh and is not confined to one or a few districts. In this regard it may be noted that it would be discriminatory to grant permission to certain districts while prohibiting the others. Further the intensity of the spread of the contagion in the State is rising at an alarming rate.
That the Court has also given serious thought to working out some mechanism in order to permit the processions for Taziyas burials, while imposing certain restrictions. However, no such workable mechanism could be suggested even by the Counsels for the Petitioners. It may be noted that Taziyas are a replica of the tomb of Husain, the martyred grandson of Prophet Muhammad, and the same is taken to be buried to a burial ground (Karbala) by innumerable groups as well as by individuals on the 10th day of the Muharram or the day of Ashura. It is also a custom that any person who makes a Taziya must take it himself and bury it at the designated burial ground. Many individuals even seek to bury the Taziyas as a fulfilment of their Vows.
Therefore there is no doubt that the burial of the Taziyas at the burial ground is a solemn and important part of custom of Muharram. However, it is necessary to note that every locality/colony has Taziyas, besides various individual families, all of whom have to get to the burial ground, since the burial of Taziyas cannot be deputed but has to be done personally. There is no mechanism fathomable, by the means of which it can be ensured that all such persons be permitted to take the Taziyas to the burial ground in a single day, while avoiding the risk of transmission of the contagion or following basic rules of social distancing, which are an absolute necessity in these unprecedented times. Another important aspect of the matter is that no restriction can be placed only on certain groups or individuals while permitting the others, since that would clearly amount to forming a class within a class, which would be arbitrary and discriminatory.
Further, at this juncture regard may be had to the intensity of Covid-19 transmission in the State of Uttar Pradesh, which is alarmingly high. It may be noted that the Uttar Pradesh is the most populated State in the Country and is at the Stage of Community Transmission on account of which it has quicky reached the 4th spot amongst the States in the number of active cases, with each passing day, the highest number of cases being reported. Further, this Court, while taking cognizance of the rise in intensity of the rise of Covid-19 cases across the state, directed the State Government vide order dated 25.08.2020, to present an action-plan to contain the contagion. The Court also observed that any step lesser than a lock down would be of no help.
Therefore, although the complete prohibition of practices which are essential to the religions is an extraordinary measure, it is very much in proportion to the unprecedented situation, owing to the pandemic. The right to practice and propagate religion has been made subject to public order, morality and health, even under the Constitution of India.
The Pandemic is spreading like wild fire, despite harsh lockdowns. People are standing naked at the shore and don’t know when the huge wave of Corona may sweep us into the deep sea people really don’t know what tomorrow holds. Adoption of safe practices are needed to win over the health crisis. People need to understand the Art of living with the Corona Virus.
People must hope and trust that God would perceive their restraint in the customary practices, not as a slight, but as an act of compassion for our brothers and sisters and give us the opportunity to celebrate all festivals with greater faith and fervour in future.
Order of the Court
Therefore in these testing times, it is not possible to lift the prohibition by providing any guidelines for regulating the mourning rituals/practice connected with the 10th day of Moharram. In view of the above, the Court does not find any justification to issue any directions in the matter. The present Public Interest Litigation as well as the other PILs are accordingly, dismissed.
