Hon’ble High Court of Allahabad refused to grant permission to hold Muharram procession

Court No. 32 AFR Order reserved on 28.08.2020 Order delivered on 29.08.2020 Case : PUBLIC INTEREST LITIGATIONNo. 8420 Petitioner : Roshan Khan And 2 Others Respondent : State Of U.P. And 4 Others Counsel for Petitioner : M J Akhtar Imran Khan Viquar Mehdi ZaidiNo. 8420 Petitioner: Japhar Abbas Union Of India And 2 Others Counsel for Petitioner: Sayyed Kashif Abbas Rizvi Counsel for Respondent: A.S.G.I. A.N.Rai C.S.C Case : PUBLIC INTEREST LITIGATIONNo. 8420 Mehdi Principal Secretary And 2 Others Counsel for Petitioner: Mashhood Abbas Sayyed Kashif Abbas Rizvi Counsel for Respondent : C.S.C Case: PUBLIC INTEREST LITIGATIONNo. 8420 Petitioner: Syed Shabbir Shaukat Abdi Alias Shaukat Bharti And 3 Others State Of U.P And 3 Others Counsel for Petitioner: Charlie Prakash Kamal Counsel for Respondent: C.S.C Hon ble Shashi Kant Gupta J Hon ble Shamim Ahmed J Delivered by Hon’ble Shashi Kant Gupta J Since the controversy raised in all the aforesaid Writ Petitions is identical they are being decided by a common order treating Public Interest Litigationas the leading case 2. 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 3. 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 herein below Guidelines For Phased Re openingOrder No. 40 3 2020 DM 1(A) dated 29th July 2020 1. Activities Permitted during Unlock 3 period outside the Containment Zones. In Areas outside the Containment Zones All activities will be permitted except the following i. … … v. Social political sports entertainment academic cultural religious functions and other large congregations. … … ... 5. States UTs based on their assessment of the situations may prohibit certain activities outside the containment zones or impose such restrictions as deemed necessary. … … सेवा मे Government Order dated 10.08.2020 समस्त जि(cid:10)लाधि(cid:13)कारी वरिरष्ठ पुलिलस अ(cid:13)ीक्षक पुलिलस अ(cid:13)ीक्षक प्रधितलिलपिप समस्तउ०प्र०। समस्त मण्डलायुक्त पुलिलस महापिनरीक्षक पुलिलस उप उ०प्र०। अपर पुलिलस महापिनदेशक कानून एवं व्यवस्था अभि.सूचना सुरक्षा रेलवे उ०प्र०। पुलिलस कपिमश्नर लखनऊ गौतमबुद्ध नगर। समस्त डी०आर०एम० रेलवे उ०प्र०। प्रबन्(cid:13) पिनदेशक उ०प्र० राज्य सड़क परिरवहन पिनगम पुलिलस महापिनदेशक उत्तर प्रदेश लखनऊ। सूचनाथ<ः अपर मुख्य सधिचव मा० मुख्यमंत्री2005 लखनऊः पिदनांक 10 अगस्त 2020 माह अगस्त 2020 में पड़ने वाले त्योहार यथामें अस्थिस्थरता फैलाने वाले व्यपिक्तयों पर सतक दृपिष्ट रखने की आवश्यकता है। इस अवधि(cid:13) मे असामाजि(cid:10)क तत्वों द्वारा कानून व्यवस्था को .ंग करने का प्रयास पिकयापिनदेशक उ०प्र० राज्य सड़क परिरवहन पिनगम लखनऊ। पुलिलस महापिनदेशक उत्तर प्रदेश लखनऊ। सूचनाथ< अपर मुख्य सधिचव मा० मुख्यमंत्री उत्तर प्रदेश शासन लखनऊ। स्टाफ आपिफसर मुख्य सधिचव उत्तर प्रदेश शासन लखनऊ। प्रेषकः गृह पिव.ाग उत्तर प्रदेश शासन लखनऊ। संख्या 7K VI 7K VI 7K VI के छः सापिनप्र 2020 लखनऊःपिदनांक 23 अगस्त कृपया माह अगस्त 2020 मे पड़ने वाले त्यौहारो को गृह मंत्रालय .ारत सरकार की कोपिवड़ 19 की गाइड लाइन्स का पालन करते हुये सादगी से मनाये2005 ) 2005 पिदनांक 10 अगस्त 2020 का संद.< ग्रहण करने का कष्ट करे जि(cid:10)सके द्वारा माह अगस्त मे पड़ने वाले त्यौहारो पर कोई .ीमे पिवस्तृत पिदशा पिनदZश पिनग<त पिकये गये है। 2 उक्त के क्रम मे वत<मान परिरस्थिस्थधितयों के दृपिष्टगत प्रदेश के स.ीमे .ारत सरकार नई पिदल्ली एवं उत्तर प्रेदश शासन द्वारा समय समय पर पिनग<त पिनदZशो के आलोक मे असामाजि(cid:10)क तत्वो आतंकवादी एवं समा(cid:10) मे अस्थिस्थरता फैलाने वाले व्यपिक्तयों पर सत<क दृपिष्ट रखने की आवश्यकता है। 3 उक्त के दृपिष्टगत आगामी अवधि(cid:13) मे असामाजि(cid:10)क तत्वो द्वारा कानून व्यवस्था एवं सम्प्रदाधियक सौहाद< को .ंग करने का प्रयास पिकयेvide 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 1 of India and others wherein in paragraph no. 9 of the judgment the Hon’ble Apex Court has observed as “(9) The bare minimum number of people shall be allowed by the Committee to participate in the rituals and in the Rath Yatra. We take note of the fact that the State of Orissa has a good record of having controlled the pandemic with a very little loss of life We see no reason why the same attitude of care and caution should not be applied to the Rath Yatra.” 8. Heard Mr. V.M. Zaidi Senior Advocate Mr. S.F.A Naqvi Senior Advocate Mr. S.K.A. Rizvi Mr. K.K. Roy learned counsels for the petitioners Mr. S.P. Singh learned Addl. Solicitor General of India assisted by Mr A.N. Rai Counsel for the Union of India Mr. Ramanand Pandey and learned Additional Chief Standing Counsel appearing on behalf of the State and perused the material available on record particularly Notification dated 29.07.2020 issued by Central Government and Notification dated 10.08.2020 and 23.08.2020 issued by the State Government 9. It is notable that earlier a writ petition filed by Syed Kalbe Jawad i.e. Writ PetitionNo. 9220 1 before the Apex Court which was dismissed as withdrawn with liberty to approach the Allahabad High Court on 27.08.2020 and no relief was granted by the Apex Court in the aforesaid matter 10. That in view of the aforesaid contentions the issues that arise for determination before this Court are: 1) Whether the impugned Government Orders are arbitrary and discriminatory inasmuch as they seek to target a particular community 2) 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 3) 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 1 11. 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 12. 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. Regard may be had to Clause of the Notification dated 10.08.2020 that clearly indicates that no processions or Jhankis have been permitted during the Janmastami festival. Similarly Clause of the said Notification also indicates that 1 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. 13. 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 14. 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 1 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 15. 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 processionof 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. 16. 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 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. 1 17. 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. 18. That we have 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. 19. 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 1 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. 20. 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 1 forming a class within a class which would be arbitrary 21. 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 in P.I.L. No. 5720 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. 22. Therefore although the complete prohibition of practices which are essential to our religions is an 1 extraordinary measure it is very much in proportion to the unprecedented situation we are faced with owing to the pandemic. The right to practise and propagate religion has been made subject to public order morality and health even under the Constitution of India. 23. The Pandemic is spreading like wild fire despite harsh lockdowns. We are standing naked at the shore and don’t know when the huge wave of Corona may sweep us into the deep sea. We really don’t know what tomorrow holds. Adoption of safe practices are needed to win over the health crisis. We need to understand the Art of living with the Corona Virus. 24. Therefore 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 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 1 us the opportunity to celebrate all festivals with greater faith and fervour in future. It is only together with co operation understanding and support we as ‘One Nation’ can emerge stronger from these treacherous times and overcome this season of darkness 25. In view of the above we do not see justification to issue any directions in the matter. The present Public Interest Litigation as well as Public Interest Litigation Nos. 841 of 2020 842 of 2020 and 848 of 2020 are accordingly dismissed Order Date: 29.8.2020 2

Summary: The complete prohibition of practices that are essential to our religions is an extraordinary measure, it is very much in proportion to the unprecedented situation we are faced with, owing to the pandemic. The right to practise and propagate religion has been made subject to public order, morality and health, even under the Constitution of India. Adoption of safe practices is needed to win over the health crisis held by Hon’ble Justice Shashi Kant Gupta and Hon’ble Justice Shamim Ahmed in Roshan Khan &amp; Ors. V. State of U.P [PIL No. 840 of 2020]. The facts relate to leading PIL is that 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 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. Hon’ble High Court at Allahabad refused to grant permission to hold the Tazia procession. They observed that Tazias there is no doubt that the burial of the Taziyas at the burial ground is a solemn and important part of the custom of Muharram. However, it is necessary to note that every locality 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.