'Perform Religious Rituals Associated With "Muharram" Within The Religious Places', Telangana High Court Dismisses Plea Seeking Permission To Carry On 'Bibika Alam Juloos' [Read Order]

The Telangana High Court on Wednesday (26th August) dismissed a Writ Petition seeking permission to carry on the procession known as "Bibika Alam Juloos" starting from Alawa Bibi and passing through Dabeerpura, Etebar Chowk, Kotla Ali Jah, Charminar, Gulzar House, Panjesha, Mir Alam Mandi, Darulshefa with ending point at Almas Mosque at Chaderghat.The Single Bench comprising Justice T. Vinod Kumar observed,"Though right to profess religion is a fundamental right, the same is not an absolute right, as the opening words of the Article itself makes it clear that such right being "subject to public order, morality and health" apart from being subjected to restriction under Article 25(2) of the Constitution of India, which includes the operation of any law."The background of the caseThe present writ petition was filed by the petitioner (M/S.Fatima Seva Dal Society) under Article 226 of the Constitution of India for issuance of a Writ of Mandamus to direct the respondents, more particularly 2nd respondent to issue permission for carrying on the procession known as "Bibika Alam Juloos".[Note: It may be noted that on the 10th day of Muharram, thousands of Shias take part in a procession to mark the martyrdom of Imam Hussain, the grandson of Prophet Muhammad, in the battle of Karbala in 681 AD.]The learned counsel for the petitioner submitted before the court that the holding of a procession with 10 camels, 1 horse and 1 elephant with jhula of Hazrath Ali Asghar followed by Alams on the tenth day of Muharram is an age-old religious tradition being performed for last 442 years, and this year it falls on 30.08.2020.Further, it was submitted that the petitioner intends to perform such religious ritual, and sought permission from the 2nd respondent authority by making an application on 19.08.2020.However, no permission was granted by the 2nd respondent authority till 26th August, so the petitioner was constrained to move this court seeking a direction to the respondent authorities to accord such permission.Arguments of the petitionerThe learned counsel for the petitioner further submitted that being a religious tradition in vogue for time immemorial, the respondent authorities cannot interfere and any such obstruction would amount to interfering with the freedom of right to profess religion, as enshrined in Article 25 of the Constitution of India.It was argued that the Hon'ble Supreme Court in W.P. (Civil) No. 571 of 2020 , dated 22.06.2020 in connection with Sri Jagannath Rath yatra at Puri in the State of Odisha.[Note: Modifying the absolute stay on conduct of Jagannath Rath Yatra in Odisha, the Supreme Court on 22.06.2020 had allowed the Rath Yatra at Puri, observing the strict restrictions and regulations of the Centre and the State Government.]Thus, learned counsel submitted that a direction be issued to the 2nd respondent authority for allowing the petitioner to proceed with the above procession through the route as mentioned above.On the other hand, the Special Government Pleader drew the attention of this Court to the orders passed by the Hon'ble Supreme Court of India in Writ Petition (Civil) No.859 of 2020, dated 25.08.2020 .He submitted before the court that in a writ petition filed before the Hon'ble Supreme Court with a similar relief, the Constitutional Bench of the Hon'ble Supreme Court was not inclined to grant interim relief for conduct of procession on account of Muharram in view of pandemic Covid-19 and only directed the petitioners therein to implead 28 States and posted the matter after four weeks.[Note: In this matter, a bench of Chief Justice SA Bobde, Justices AS Bopanna & V. Ramasubramaniun had asked the petitioner's Advocate Wasi Haider to implead 28 states in his petition seeking directions to the Union & State Governments for allowing the Mourning Procession to take place in a limited capacity only, i.e. with 5 people participating in the procession only.]However, the Supreme court on Thursday (27th August) refused to grant permission to hold Muharram Procession amid the covid19 pandemic. A bench of CJI SA Bobde, Justices AS Bopanna & V. Ramasubramaniun observed that granting general directions to take out the procession across the country shall lead to chaos & a particular community may then be targeted for spreading the virus.The Court's observationThe court was of the view that as the pandemic Covid-19 concerns with health and the Government having invoked the provisions of Epidemic Diseases Act, 1897 and Disaster Management Act, 2005, and placing restriction on certain activities, which includes processions, to stop the spread of virus, the restriction would have to be considered as by operation of law.Thus, the court observed that it was not open to the petitioner to contend that the respondent authorities cannot put any restriction with regard to petitioner carrying on religious activities including holding of procession.However, the bench observed that the MoHA guidelines permits...

'Perform Religious Rituals Associated With "Muharram" Within The Religious Places', Telangana High Court Dismisses Plea Seeking Permission To Carry On 'Bibika Alam Juloos' [Read Order]

Sparsh Upadhyay

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