The presence of majority of a religious group in an area, is not a valid ground to disallow the celebration of religious festivals by other communities: Madras High Court

W.A.Nos.743 & 20619IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.04.2021CORAM :THE HONOURABLE MR.JUSTICE N.KIRUBAKARANandTHE HONOURABLE MR.JUSTICE P.VELMURUGANW.A.Nos.743 & 20619andC.M.P.Nos.5984 & 215619W.A.No.7419Ramasamy Udayar S o.Muthusamy Udayar No.3 88 Main Street V.Kalathur Village & Post Veppanthattai Taluk Perambalur District 621 117... AppellantVs1.The District Collector Perambalur District Perambalur. 2.The Sub Divisional Executive Magistrate andRevenue Divisional Officer Perambalur District Perambalur. 3.The Deputy Superintendent of Police Mangalamedu Sub Division Perambalur District Perambalur.1 34WWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 206194.Sunnath Val JamathV.Kalathur 621 117 Perambalur District Rep. by its President T.S.A.Abdul Rahim S o.Abdul Majeed.5.R.Srinivasa Rao S o.Rajamuthu Rayappa Nagar V.Kalathur Post Veppanthattai Taluk Perambalur District. … RespondentsPRAYER : Appeal against the order passed on 21.12.2018 in W.P.No.280118 on the file of this Court.For Appellant: Mr.G.Karthikeyan For Respondent : Mr.J.PothirajMohamed Gani Vs. The Superintendent of Police and others reported in CDJ 2005 MHC 1276.2) Pooja Samiti Fulwaria Vs. State reported in CDJ 1985 Bihar HC 018.3) Chandu Sajan Patil and others Vs. Kyahalchand Panamchand and others reported in CDJ BHC 009.Relying on the above decisions the learned counsel would contend that the procession cannot be prohibited through the roads and he would seek permission for first procession of the second day of the temple festival to go through all the streets for which permission was already granted for the second procession of the first day as well as the second day. 12 34WWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 2061910.On the other hand Mr.Doraisamy learned counsel appearing on behalf of the third respondent would submit the following: 1. The learned Single Judge inspite of the objections raised by the third respondent erroneously granted permission to conduct two processions on the first two days. The third respondent had only agreed for conduct of two processions in a single day and further objected for conduct of procession after 9.00 P.M as the same would affect peace and tranquility in the area especially the ones which are occupied by Muslim. Hence there should not be any procession beyond 9.00 P.M. 2. Some of the areas viz. Periakadai Veedhi Post Office Street Pallivasal Street are occupied only by the Muslim people and not even a single Hindu family resides in those areas and hence there is no reason to insist upon taking out the procession in those Muslim areas. 3. The petitioner s intention to take out the procession in those Muslim dominated areas is only to create the law and order problem. 13 34WWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 206194. During the previous years viz. 2016 and 2017 only two processions were permitted on a single day through Muslim area with police protection.5. Therefore the permission granted by the learned Single Judge for taking out procession on the first day as well as the second day beyond 9.00 P.M. has to be set aside and only two processions in a single day viz. the second day of the temple festival should be permitted. 11.Mr.J.Pothiraj learned Special Government Pleader appearing on behalf of the State would submit that restrictions have been made by the authorities only to maintain the law and order in the interest of peace and harmony among the public. He would further submit that the authorities would abide by any order passed by this Court. 12.An impleading petition has been filed claiming certain rights by the scheduled caste people. However subsequent to the filing of the said impleading petition an agreement is said to have been reached upon by 14 34WWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 20619both the parties to give certain rights to the Scheduled Caste people and a memo of compromise has also been filed by the people belonging to the Scheduled castes and other Hindu community people. Therefore the impleading petitioner sought to close the said petition recording the above said compromise. 13.It is seen from the records produced before this Court that the major community residing in the village are Hindus and Muslims and that there was no problem till the year 2011 for conduct of festivals in the four major temples viz. viz. Deputy Superintendent of Police that three days festival of the aforesaid temples were peacefully conducted till the year 2011 and only from the year 2012 onwards the Muslims started 15 34WWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 20619objecting to some of the Hindu festivals terming them as Sins. Even though Muslims objected for conducting of temple festival and procession the petitioner approached the police authorities seeking protection for conducting temple festival and procession. By an order dated 20.08.2012 the police authorities granted permission with certain restrictions. The operative portion of the order reads as follows: j fsJ kDtpy 31 08 2012 Mk njjp khiy 03 00“ kzpastpy bry ypak kDf F khtpsf Fk . uhag gh. bry ypak kd . khhpak kd RthkpfSf F Cudp bgh fy . khtpyf F g{i$ kw Wk ut[ 10 00 kzpf F nky Rthkp tPjp cyh kw Wk fufhl lKk 01 09 2012k njjp gfypy khhpak kDf F myF Fj Jjy . ghy Flk . mf dp rl o nksj Jld Ch tyk kw Wk ut[ 10 00 kzpf F nky Rthkp tPjp cyhtpw F fufhl lk kw Wk thdntof ifa[k 02 09 2012k njjp fhiy 10 00 kzpf F k rs ePuhl L tpHht[k elj Jtjhf” nfhhpa kDtpw F fPH fz l epge jidapd nghpy mDkjp tH fg gLfpwJ 1)K! yPk kf fspd bjhGif neuj jpd nghJ jhiu jg gl il mof ff TlhJ 2)K! yPk kf fs bjhGif neuj jpd nghJ xypg bgUf fpfs gad gLj jf TlhJ 3)K! yPk bjUf fspd tHpahf bry Yk nghJ mikjpahd Kiwapy bry y ntz Lk 16 34WWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 206194)K! yPk kjj jpdhpd kdk g[z gLk go nfhrk lf TlhJ 5) e jpa iwahz ik tHpghl ow F vjpuhf bray glf TlhJ 6)Tk g[ tot xypg bgUf fpia gad gLj jf TlhJ ghf ! tot xypg bgUf fpia kl Lk jhd gad gLj j ntz Lk 7)bguk gYhh cl nfhl l tUtha nfhl lhl rpah mth fs 16 08 2012k njjpad W nkw go jpUtpHh rk ke jkhf mikjp ngr R thh j ij elj jp mjd epge jidfspd go K! yPk bjUf fs tHpahf bry Yk nghJ ele Jbfhs s ntz Lk ”From the abovesaid order it is clear that on the first day “Oorani Pongal” and “Maavilakku Poojai” were permitted to be conducted and on the same day Deity s procession along with folk dance was permitted after 10.00 P.M onwards. On the second day for Mariamman deity “Milk Pot” and “Fire Pot” procession along with music was permitted to be conducted and the Deity s procession along with folk dance and fire works was permitted to be conducted after 10.00 P.M onwards. Likewise on the third day sprinkling of turmeric water was permitted to be conducted in the morning time with certain conditions. 14.A Writ Petition was filed by one A.Nattar Basha in W.P.No.23487 17 34WWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 20619of 2012 seeking Writ of Mandamus directing the official respondents not to permit any procession on 30.08.2012 or any other subsequent dates either conducted by the 10th respondentor any other person acting through him to proceed in the Bazaar Street Chinna Street Nadu Street West Street Pallivasal Street at V.Kalathur Village Veppanthatai Taluk Perambalur District for the purpose of avoiding communal disharmony. 15.The said Writ Petition was disposed of on 29.08.2012 with a direction to the police authorities to give sufficient police protection for conducting the processions and functions as per the order passed by the police authorities dated 20.08.2012. Even though the Muslim people objected the police authorities granted permission and infact it had been relied upon by this Court and a positive direction was issued to provide police protection for the purpose of conducting the festival as well as the processions. 16.Subsequently in the year 2015 also during the festival season 18 34WWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 20619Jamma Masjid Sunnath Val the private respondent herein filed a Writ Petition in W.P.No.332815 seeking the very same relief as sought for by A.Nattar Basha in the year 2012 vide W.P.No.234812. The prayer sought for in W.P.No.332815 is extracted hereunder: “Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus directing the respondents not to permit the procession organized by Village Hindu Public V.Kalathur to be held on 23.10.2015 to 25.10.2015 through the streets where the Muslim Community people are predominantly residing and where the Mosque is situated and to permit the procession through the ultimate route upon the representation submitted by the petitioner 12.10.2015.”The said Writ Petition was filed apprehending that there would be communal clash in the procession to be held on 23.10.2015 to 25.10.2015 organized by the temple authorities. However this Court by order dated 15.10.2015 disposed the said writ petition directing the police authorities to take appropriate action to avoid any law and order problem that might likely to occur in the procession to be held between 23.10.2015 to 25.10.2015. The 19 34WWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 20619said order dated 15.10.2015 is usefully extracted hereunder: “Apprehending communal clash in the procession to be held on 23.10.2015 to 25.10.2015 organized by the third parties petitioner made as representation to the respondents on 12.10.2015 and thereafter filed the present writ petition.2.The learned Special Govt. Pleader submitted that appropriate steps would be taken to avoid any possible law and order problem. The said statement is recorded.3.The writ petition is disposed of by directing the respondent No.2 and 3 to take appropriate action to avoid any possible law and order problem that may likely to occur in the procession to be held between 23.10.2015 to 25.10.2015. The writ petition stands disposed of accordingly No costs.”17.The counter affidavit filed by the police authorities in this case as well as the previous orders passed by this Court would make it clear that temple festivals as well as processions are being conducted years together. Therefore the conduct of temple s processions through the roads streets 20 34WWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 20619cannot be prohibited. Rightly the police authorities in the year 2012 had only imposed conditions and that was also approved by this Court. 18.However in the subsequent years the police authorities permitted to conduct two processions on a single day from 9.00 P.M to 5.00 A.M. In the year 2018 the police authorities by an order dated 12.10.2018 permitted to have the procession on the first day via. Main Road upto temple and to have Oorani Pongal. The first procession of second day carrying “Milk Pot” and “Fire Pot” was permitted to be conducted from at 10.00 A.M to 1.00 P.M and the second procession on the second day was permitted to be conducted from 9.00 P.M to 5.00 A.M through Raja Veedhis. On the third day the procession for sprinkling of turmeric water was permitted to be conducted from Theradi to Main road via Pillayar Koil street Mela street Perumal Koil street Agraharam street and to return back through the same route. The said order passed by the police authorities was challenged before this Court in W.P.No.280118. The learned Single Judge by an order dated 21.12.2018 had modified the conditions and the said order is the subject matter of the present Appeals.21 34WWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 2061919.As stated earlier before the year 2012 Temple s processions were conducted through all the streets in the village and there was no problem. Even from the year 2012 to 2015 processions were conducted through all the streets and roads which have been approved by this Court in W.P.No.234812 and W.P.No.332815 filed by the private respondent herein. Therefore it is evident that taking out Temple s processions through all the streets and roads in V.Kalathur village have been the custom and practice of the Hindus for the past many decades. It seems from the year 2012 onwards when the Muslims started objecting the problem seems to have started. 20.Section 3(21) of the District Municipalities Act 1920 defines public street which is usefully extracted as follows:“(21) Public street means any street road square court alley passage or riding pathwhether a thoroughfare or not and includethe roadway over any public bridge or causeway the footway attached to any such street public bridge or 22 34WWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 20619causeway andthe drains attached to any such street public bridge or causeway and the land whether covered or not by any pavement verandah or other structure which lies on either side of the roadway upto the boundaries of the adjacent property whether that property is private property or property belonging toSCC 770 declared that protection given under Article 25 & 26 of the Constitution is extended to rituals ceremonies and modes of worship. Para 9 states as follows:"The protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in pursuance of religion and therefore contains a guarantee for rituals observances ceremonies and modes of worship which are essential or integral part of religion. What constitutes an integral or essential part of religion has to be determined with reference to its doctrines practices tenets historical background etc. of the given religion.Sardar Syedna Taher Saifuddin Saheb v. State of BombaySCR 496] and Seshammal v. State of T.N.2 SCC 11 : AIR 1972 SC 1586] regarding those aspects that are to be looked into so as to determine whether a part or practice is essential or not.) What is meant by “an essential part or practices of a religion” is now the matter for elucidation. Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a religion is built without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts which are protected by the Constitution. Nobody can say that an essential part or practice of one s religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the “core” of religion whereupon the belief is based and religion is founded upon. They could only be treated as mere embellishments to the non essentialpart or practices."26 34WWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 2061922.(c).A Division Bench of this Court in Mohammed Gani Vs. The Superintendent of Police & others reported in CDJ 2005 MHC 1276 held that muslims are entitled to take their dead bodies through public streets. In the above case Harijans objected funeral procession by muslims through their streets. Paragraphs 13 to 16 and 33 are usefully extracted as follows: "13.This is a free democratic and secular country. In our country people of all religions castes and communities are equal under the Constitution vide Articles 14 to 18 and they have a right freely to practice their religion vide Article 25. This country does not belong to Hindus alone. It belongs equally to Muslims Christians Buddhists Jains Parsis Sikhs Jews etc. and all are equal under the law. Also it is not that only Hindus can live in this country as first rate citizens while others can live only as second rate citizens. That is not so. In our country all citizens are and are entitled to live as first rate citizens. It is the greatness of our Founding Fathers who made the Constitution that at the time of Independence in 1 947 when the sub continent was engulfed in religious madness they insisted that our country shall not be declared as a Hindu State but shall be a secular State. This was indeed a very difficult thing to do at that time because when passions are inflamed it is difficult to keep a cool mind. There must have been tremendous pressure on our Founding Fathers to declare India a Hindu State particularly since Pakistan had declared itself an Islamic State. It is the 27 34WWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 20619greatness of our Founding Fathers that they kept a cool mind and resisted these pressures and provided for a Secular State in India under our Constitution. 14.A basic feature of India is that it is a country with tremendous diversity having so many religionscastescommunities languages ethnic groups etc. Hence the only policy that can work in this country and keep it united and on the path of progress is the policy of secularism and giving equal respect to all religions castes ethnic groups communities languages cultures etc. Without such a policy our country cannot survive for long. 15.We can contrast our country with China which has a population of 125 crores as compared to our population of 105 crores and which has more than twice our land area but in which there is broad homogeneity. 96% Chinese belong to one ethnic group called the Han Chinese. They all have Mongoloid features and a common scriptof the Constitution to practice their religion freely which includes the right to perform their religious rites and ceremonies including burying of their dead in accordance with their traditional rites."23.When such is the legal position there cannot be any order prohibiting the religious festivals and Temple s processions through all the streets and roads of the village town when the same is being conducted for years together. If at all there can be some regulations and there cannot be any prohibition. 24.If there going to be any law and order problem the police 29 34WWW.LIVELAW.INWWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 20619authorities have to intervene and prevent any untoward incidents and give appropriate police protection. Therefore the case of the petitioner has to be accepted and there shall be a direction to the authorities to permit the Hindus to conduct two processions on the first and second day of the village temple festivals through all the streets and roads which have been conducted till 2015. As far as the procession on the third day of temple festival is concerned the petitioner himself accepted that Hindus would not conduct the procession in which the turmeric water would be sprinkled.25.The abovesaid facts of the case would reveal that all along there had been religious tolerance and the religious festivals were conducted very smoothly and religious procession were conducted without any problem through all the streets and roads of the village. If religious intolerance is going to be allowed it is not good for a secular country. Intolerance in any form by any religious group has to be curtailed and prohibited. In this case intolerance of a particular religious group is exhibited by objecting for the festivals which have been conducted for decades together and the procession through the streets and roads of the village are sought to be 30 34WWW.LIVELAW.INWWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 20619prohibited stating that the area is dominated by Muslims and therefore there cannot be any Hindu festival or procession through the locality. India is a secular country and merely because one religious group is living in majority in a particular area it cannot be a reason for not allowing other religious festivals or processions through that area. If the contention of the private respondent is to be accepted then it would create a situation in which minority people cannot conduct any festival or procession in most of the areas in India. If resistance is being exhibited by one religious group and it is reciprocated by the other religious groups there would be chaos riots religious fights causing loss of lives and destruction of properties. Consequently the secular character of our country will be destroyed or damaged. 26.Hence it is hereby declared 1.Once it has been declared by the authorities as roads or streets as per Section 180 A of the District Municipalities Act the roads and streets which are "secular" should be used as roads by all the people irrespective of their religion caste or creed. 31 34WWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 206192.Any procession including religious procession shall be conducted through all the roads and streets without any restriction. 3.Any procession including religious procession cannot be prohibited or curtailed merely because another religious group is residing or doing business in the area predominantly.4.There cannot be a prohibition for any procession including religious processions through roads by the District administration or police authorities and there can be only regulation by the police or other Government authorities to see that no untoward incident occurs or any law and order problem arises.5.Every religious group has got fundamental right to take out religious procession through all the roads without insulting the other religious sentiments and without raising any slogans against other religious groups affecting their sentiments public law and order.6.Merely because there is one place of worship belonging to other religious group the same cannot be a ground to decline deny permission to conduct procession including religious procession of other religions to go through those roads or streets. 32 34WWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 206197.The presence of religious structures places of worship cannot take away the right of other religious groups who have been enjoying all the rights including the conduct of religious procession for the past many years.8.The criminal cases filed against both the parties are directed to be withdrawn.27.In fine the appeal in W.A.No.7419 is ordered in the above terms and the appeal in W.A.No.20619 is dismissed. No costs. Consequently connected miscellaneous petitions are also closed. (N.K.K. J.)(P.V. J.)30.04.2021 pgp33 34WWW.LIVELAW.IN https: www.mhc.tn.gov.in judis W.A.Nos.743 & 20619N.KIRUBAKARAN J.andP.VELMURUGAN J.pgpTo1.The District Collector Perambalur District Perambalur. 2.The Sub Divisional Executive Magistrate andRevenue Divisional Officer Perambalur District Perambalur. 3.The Deputy Superintendent of Police Mangalamedu Sub Division Perambalur District Perambalur. W.A.Nos.743 & 20619Dated : 30.04.202134 34Type text here 

Summary: The secular character of a country will be destroyed if religious festivals and processions are disallowed merely because of the presence of a majority religious community in a geographical area. A division-bench comprising of N Kirubakiran J and P Velmurugan J while adjudicating the matter in Ramasamy Udayar v. District Collector; [W.A.Nos.743 &amp; 2064 of 2019], dealt with the issue of allowing Hindu religious processions in a Muslim dominated area. Kalathur village consists of both Muslims and Hindus population. On the Eastern side of the village Muslims are residing and on the Western side of the village, Hindus are residing. Right from the year 1951 onwards there is a dispute between the two religious groups regarding the usage of 96 cents of Government Poramboke land. Muslims wanted the land to be used as common place whereas the Hindus claim long use of Poramboke land and objected to common usage. Many clashes have also taken place between the two religious groups with regard to the said site pursuant to which many cases have also been filed against both the groups. Both the parties also approached the Police by way of complaints and Courts by filing writ petitions. The petitioner sought for permission to conduct festival for the temples in Kalathur village and the same was granted with certain conditions. The contention of the respondents in the above case was that the petitioner’s intention to take out the procession in those Muslim dominated areas is only to create the law and order problem. During the previous years, only two processions were permitted on a single day through Muslim area with police protection. Therefore, the permission granted by the learned Single Judge for taking out procession on the first day as well as the second day beyond 9.00 P.M. has to be set aside and only two processions in a single day viz., the second day of the temple festival should be permitted.