Four Public Interest Litigations were filed before the Allahabad High Court challenging 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.
A Division Bench of Justice Shashi Kant Gupta and Justice Shamim Ahmad, after hearing the arguments, reserved the Judgment on 28.08.2020 and delivered the same Today.
Issues Framed by Court:
- 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?
Contention of Petitioners
- 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.
- Such guidelines are discriminatory, targeting only one community in particular.
- 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.
Contention of Government:
- Government Orders are in no way discriminatory in nature.
- 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.
- 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.
The Court while dismissing the Petitions Held:
- 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 pandemic- Covid-19, as such restriction imposed is not arbitrary and discriminatory.
- 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.
- 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. The intensity of Covid-19 spread in Orissa, was also duly noted by the Hon’ble Apex Court, while granting the permission.
- 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.
- 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.
- The right to practice and propagate religion has been made subject to public order, morality and health, even under the Constitution of India.
- We must hope and trust that God would perceive our restraint in our 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 fervor in future. It is only together with cooperation, understanding and support, we as ‘One Nation’, can emerge stronger from these treacherous times and overcome this season of darkness