All HC | Right to practise and propagate religion is subject to public order, morality and health; Permission to lift prohibition on performing Moharram rituals, declined

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.

— Allahabad High Court

Allahabad High Court: A Division Bench of Shashi Kant Gupta and Shamim Ahmed, JJ., while addressing issues with regard to ban on performing Moharram rituals, held that,

“…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.”

Petitioners have challenged the Government Order with regard to prohibiting them along with the members of their community from taking out the Moharram Processions and further sought a direction to respondent authorities to permit them to perform religious mourning rituals/practice connected with Moharram till 30-08-2020 in light of the prevailing Pandemic situation.

Counsel for the petitioner submits that the complete ban in taking out the Moharram processions is discriminatory in nature.

Issues to be determined by the Court are as follows:

  • Whether the impugned Government Orders are arbitrary and discriminatory inasmuch as they seek to target a particular community?
  • Whether complete prohibition on carrying out processions on 30-08-2020 violates the Fundamental Right to practice and profess religion and whether 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 on 30-08-2020 is reasonable and justified?

Bench determined the above-stated issues and stated that, in view of controlling the spread of COVID-19, the State Government has imposed a complete prohibition on all religious 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 particular.

Issues 2 and 3 are interrelated. Court with regard to the same stated 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.

Adding to the above, Court expressed that there is no doubt that the burial of the Taziyas at the burial ground is a solemn and important part of the Muharram custom.

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.

Therefore, Court concluded its order stating that although the complete prohibition of practices which are essential to our religions is an extraordinary measure, it is very much in proportion to the unprecedented situation being faced, owing to the pandemic.

Right to practise and propagate religion has been made subject to public order, morality and health, even under the Constitution of India.

In view of the above, public interest litigation was dismissed.[Roshan Khan v. State of U.P., 2020 SCC OnLine All 987, decided on 29-08-2020]

V.M. Zaidi, Senior Advocate, S.F.A. Naqvi, Senior Advocate, S.K.A. Rizvi,  K.K. Roy, Counsels for the petitioners, S.P. Singh, Additional Solicitor General of India assisted by A.N. Rai, Counsel for the Union of India, Ramanand Pandey, and Additional Chief Standing Counsel, appearing on behalf of the State.

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