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 case
The 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 petitioner
The 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 observation
The 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 conduct of religious activities "within the religious premises/place of worship."
In this context the bench said,
"The petitioner can be permitted to undertake/perform religious rituals associated with "Muharram" like Ziarat Ashura, Latyma, Self-flagellation and other religious ceremonies associated with "Moharrum", within the religious places, without coming on to the public places and furnishing an undertaking to the jurisdictional police authority, where such religious places are located, to strictly abide by and adhering to the MoHA guidelines like maintenance of social distance, wearing of face cover/mask and other guidelines, as issued in order dated 30.05.2020." (emphasis supplied)
The court further said,
"If the petitioner gives such an undertaking to the authority concerned and carries on religious activities within the religious premises/place of worship, by adhering to the MoHA guidelines, there shall not be any interference from the respondent authorities concerned."
The order in WRIT PETITION No.14037 of 2020
It may be noted that on Friday (28th August) the bench of Justice Abhinand Kumar Shavili disposed of the WRIT PETITION No.14037 of 2020 by observing,
"Having considered the rival submissions made by the parties, the court is of the considered view that since the 2nd respondent has not passed any orders on the representation submitted by the petitioner on 22.08.2020, the ends of justice would be met, if this writ petition is disposed of directing the 2nd respondent to consider the representation submitted by the petitioner on 22.08.2020 and pass appropriate orders before 30.08.2020 strictly in terms of the guidelines framed by the Hon'ble Supreme Court in Jagannath Rath Yatra's Case and the MHA guidelines issued by the Government of India."
The members then submitted a representation to Hyderabad Police Commissioner Anjani Kumar but that too was disposed of, according to reports.
In this matter, it was contended by the petitioner (AnjumanEAlavi Shia Imamia Ithna Ahari Akhbari) before the Telangana High Court that it intends to perform the rituals of Moharrum by carrying Alams from Bibi Ka Alawa, Dabirpura to Chaderghat in a peaceful manner and it would not carry out any procession nor involve any elephants for carrying out the procession and only 12 persons would participate to carry the Alams from Bibi Ka Alawa, Dabirpura to Chaderghat.
Orders passed by different High Courts
It may be noted that yesterday (29th August), the Allahabad High Court had dismissed a batch of petitions seeking permission to take out Tazia procession during Muharram.
The Division Bench comprising Justices SK Gupta and Shamim Ahmed observed,
"It is with a heavy heart that we hold that 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."
However, the Bombay High Court on Friday (28th August) allowed only five persons along with a videographer to carry Tazia, a replica of the tomb of Husain, the martyred grandson of Muhammad, that is carried in processions during Muharram, on August 30 from 4:30 pm to 5:30 pm from Zanabia, Bhendi Bazar to the Shia Cemetry at Mazgaon. The Court clarified that it will be the only Tazia carried in the entire State of Maharashtra.
Division bench of Justice SJ Kathawalla and Justice Madhav Jamdar were hearing a writ petition filed by one of the oldest organizations of the Shia Community All India Idaara-Tahafuz-E-Hussainiyat through its General Secretary Habib Nasir. Petitioners sought directions to allow the rituals of Muharram to be performed during the present pandemic, from August 27 till August 30 daily for two hours.
The Juloos was scheduled for 30th August (yesterday)
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