Case BriefsHigh Courts

“People can be religious;

Men may be communal;

Whether roads could be communal?

This is the question raised in these appeals.”

Madras High Court: In a very important judgment on secularism, the bench of N.Kirubakaran and P.Velmurugan, JJ has held that any procession including religious procession cannot be prohibited or curtailed merely because another religious group is residing or doing business in the area predominantly.

The Court noticed,

“… 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.”

Background

V.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.

The petitioner approached the authorities seeking to perform Oorani Pongal Vizha for 3 days and was granted permission imposing certain conditions by an order dated 23.09.2018 including conditions with regard to the conduct of procession.

The said permission was challenged on the ground that the petitioner’s intention to take out the procession in those Muslim dominated areas is only to create the law and order problem.

Analysis

After perusing the records, the Court noticed 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.

Further, the counter affidavit filed by the police authorities in this case as well as the previous orders passed showed that temple festivals as well as processions are being conducted years together. Therefore, the conduct of temple’s processions through the roads/streets cannot be prohibited. Rightly the police authorities in the year 2012 had only imposed conditions and that was also approved by this Court.

The Court noticed that 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. 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.

“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 prohibited stating that the area is dominated by Muslims and therefore, there cannot be any Hindu festival or procession through the locality.”

It is also pertinent to note that Section 180-A of the District Municipalities Act 1920, states as follows: “All streets vested in or to be vested in or maintained by a Municipal Council shall be open to persons of whatever caste or creed.”

Hence, merely because one religious group is dominating in a particular locality, it cannot be a ground to prohibit from celebrating religious festivals or taking processions of other religious groups through those roads.

“If it is to be accepted, then a day will come when a particular religious group which is predominantly occupying the area, will not allow the people belonging to other religious groups even to use the roads even for movement, transportation or the normal access. Even the marriage processions and funeral processions would be prohibited/prevented which is not good for our society.”

The Court noticed that t temples are there for decades together. Merely because a religious group got settled in a locality and has become vociferous, they cannot object to the custom of taking Temple’s procession through all the streets in the Village and consequent upon their objections, the customary and traditional practices cannot be prevented or prohibited.

“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.”

CONCLUSION

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.

2.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.

7.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.

[Ramasamy Udayar v. District Collector, Perambalur District, 2021 SCC OnLine Mad 1779, decided on 30.04.2021]

For Appellant : S.Doraisamy

For Respondent : G.Karthikeyan (for R1) and Pothiraj (for R2 to R4)

Case BriefsHigh Courts

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.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has allowed the opening of three temples, i.e. one each in Byculla, Dadar (W) and Chembur in Mumbai on 22.08.2020 and 23.08.2020 for devotees to perform the rituals connected with ‘Paryushan’.

The Court, however made clear that

“this order is not intended to be used as a precedent by other persons to seek permission to hold any festivals/festivities which would involve, by their very nature, congregation of people, such as ‘Ganesh Festival’.”

Senior Advocate Dushyant Dave, appearing for the public charitable trust named Shri Parshwatilak Shwetamber Murtipujak Jain Trust, submitted that the Trust has given the following undertakings along with it’s prayer:

  • That the conditions mentioned in the “SOP on preventive measures to contain spread of COVID-10 in religious places/place of worship” dated 4 June 2020 by the Government of India, Ministry of Health and Family Welfare as public health measures will be strictly observed.
  • The entry of devotees will be restricted to 250 persons per day and only in the age group of 12 to 65, in the places of worship.
  • At any given point of time, no congregation of people will be allowed in temples and only up to 5 persons will be allowed to enter and remain within the inner part of the temples.
  • The Jain Community of Mumbai will be appraised of the order that may be passed by this Hon’ble Court and the above conditions through appropriate means of public communication.

On the other hand, Senior Advocate Dr. Abhishek Manu Singhvi, appearing for the State of Maharashtra, highlighted that the SOPs issued by the Government of India provides only the minimum threshold and that the different States are entitled to fix a higher threshold depending upon the fact situation.

“… the State Government had applied the restrictions uniformly to all communities and all religions and that nothing can be done to upset the balance.”

The Court was, however, of the view that a small reprieve can be granted to the petitioners, without making it as a precedent. It took note of the fact that the petitioners are not seeking to hold any festivities in congregation. The petitioners want by way of an interim measure opening of three temples, one each in Byculla, Dadar (W) and Chembur in Mumbai. They have undertaken to restrict the entry of devotees only to five persons at any given time subject to maximum of 250 devotees on a single day. This prayer is also restricted only to two days viz., 22.08.2020 and 23.08.2020.

[Shri Parshwatilak Shwetamber Tapagachh Murtipujak Jain Trust v. State of Maharashtra, 2020 SCC OnLine SC 665, order dated 21.08.2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: Allowing Odisha Government to conduct Jagannath Puri Rath Yatra, the Court has said,

if it is possible to ensure that there is no public attendance, we see no reason why the Rath Yatra cannot be conducted safely along its usual route from temple to temple.”

Taking note of the fact that in the 18th-19th century a yatra of this kind was responsible for the spread of cholera and plague “like wild fire”, the Court said that the authorities concerned should remain aware that the situation can become dangerous if the rules of caution are ignored.

Refusing to micro-manage the rituals, the Court left it to the wisdom of State, the Centre and temple management to conduct Puri’s Rath Yatra, scheduled to start from June 23, in a restricted manner in the wake of COVID-19.

The order of the Court came after Centre sought modification in Jagannath Puri Rath Yatra order dated 18.06.2020 wherein the 3-judge bench of SA Bobde, CJ and Dinesh Maheshwari and AS Bopanna, JJ had directed that there shall be no Rath Yatra anywhere in the temple town of Odisha or in any other part of the State this year.

In the affidavit submitted before the Court, the Odisha Government said its apprehension is primarily related to thousands of Rath Yatras taking place all over the state but it can only be limited to Puri alone without public attendance as proposed by Gajapati Maharaj of Puri, Chairman of the Puri Jagannath Temple administration. The government said it will make the necessary arrangements to conduct it accordingly.

The Court, hence, issued the following directions:

  • All entry points into the City of Puri, i.e., airports, railway stations, bus stands, etc., shall be closed during the period of Rath Yatra festival.
  • State Government shall impose a curfew in the City of Puri on all the days and during all the time when Rath Yatra chariots are taken in procession. To start with, the curfew shall begin tonight at 8 P.M.
  • Each Rath, i.e., Chariot, shall be pulled by not more than 500 persons. Each of those 500 persons shall be tested for the Coronavirus. They shall be permitted to pull the chariot only if they have been found negative. The number 500 shall include officials and police personnel.
  • There shall be an interval of one hour between two chariots.
  • Each of those who is engaged in pulling the chariot shall maintain social distancing before, during and after the Rath Yatra.
  • Only such persons shall be associated with the rituals who have been found to have tested negative and shall maintain social distancing.
  • The primary responsibility for conducting the Rath Yatra in accordance with the conditions and other norms shall be that of the Committee in-charge of Puri Jagannath Temple Administration. Each member of the Committee shall be responsible for due compliance with the conditions imposed by this Court and the general directions which govern ensuring of public health issued by the Union Government. In addition, the officers designated by the State Government for conduct of the Rath Yatra shall be responsible likewise.
  • The rituals and the Rath Yatra shall be freely covered by the visual media. The State Government shall allow TV cameras to be installed at such places as may be found necessary by the TV crew.
  • The bare minimum number of people shall be allowed by the Committee to participate in the rituals and in the Rath Yatra.
  • State Government may take such help as may be found necessary from the Union Government.
  • State Government shall maintain a record containing details of all those who have been allowed to participate in the Rath Yatra or the rituals connected therewith along with details of their medical conditions after testing.

While passing the aforementioned directions, Court said,

“…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.”

[Odisha Vikash Parishad v. Union of India, 2020 SCC OnLine SC 533 , order dated 22.06.2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and Dinesh Maheshwari and AS Bopanna, JJ has directed that there shall be no Rath Yatra anywhere in the temple town of Odisha or in any other part of the State this year. The Court also directed that there shall be no activities secular or religious associated with the Rath Yatra during this period.

“Having regard to the danger presented by such a large gathering of people for the Rath Yatra, we consider it appropriate in the interests of public health and safety of citizens who are devotees to restrain the respondents from holding the Rath Yatra this year.”

The order of the Court came after noticing that the number of people that are likely to gather for the annual Jagannath Rath Yatra scheduled to be held from 23rd June, 2020, is going to be about 10 to 12 lakh and that the festivities normally continue for a period of 10 to 12 days.

The Court said,

“Article 251 of the Constitution of India itself confers the right to freely profess and propagate religion subject to health.”

[Odisha Vikash Parishad v. Union of India, 2020 SCC OnLine SC 519 , order dated 18.06.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Arun Mishra, MR Shah and S. Ravindra Bhatt, JJ issued a slew of directions to ensure proper darshan of the deity at Shri Jagannath Temple, Puri by all the devotes and has asked the Temple Administration and the Chief Administrator including the State Government to prepare a roadmap with the help of experts for having proper darshan by the devotees/pilgrims and to implement it effectively and to ensure that there is no commotion so that everybody is able to have darshan peacefully without any obstruction by anybody.

Asking the State Government to depute full time Chief Administrator, not by way of additional charge forthwith, the Court said,

“It is apparent that various aspects have to be gone into and considered by the Temple Managing Committee and wherever the Government role comes in, the Government has to do the needful after taking all the stakeholders into confidence.”

The Court said that there should not be any commotion and chaos as large number of pilgrims are visiting the Temple every day.  It is a pious duty to provide proper darshan in systematic manner and to take care of the aged, the infirm and children. It is for the experts to suggest what system can be devised without disturbances to the rituals to be performed in Temple and passage required for it and thereafter Temple Management Committee and Administration have to consider it.

The main aspects that the bench has highlighted in the verdict are as follows:

Misconduct/Indiscipline by Temple servitors/incumbents

Chief Administrator of the Temple, for the time being, may take appropriate steps against such servitors/incumbents, who create obstruction in seva/puja/niti and are involved in misbehavior and misconduct against the employees of the Temple Administration or with devotees.

Nitis/Rituals to be performed at Temple

Temple Managing Committee must ensure that as suggested by Srimad Jagadguru Shankaracharya and also as per Record of Rights, nitis and puja are performed each and every day.

Setting up of schools for the children of servitors

Suitable place to be allotted for the school for children of servitors for their proper education as may be considered necessary. The school should also cater to other members of the public, and not exclusively for children of such servitors. The cost of Rs.5 crores imposed on Kalinga Institute of Medical Sciences, lying in deposit in Supreme Court along with interest, to be utilized for the purpose of setting up the school and its infrastructure.

Accommodation for pilgrims

With respect to the accommodation not only the Temple Administration, but the Government can also do the needful as that is for providing shelter to humanity, which is necessary. When there is a vast congregation of people, it becomes the Government’s duty to ensure welfare, law and order, hygiene and provide proper amenities and sanitation facilities.

Training to servitors

Proper training must be imparted to the servitors as they are in very large number and it must be ensured that only qualified servitors in traditional nitis and ritual, perform seva, puja and nitis.

Economic welfare of servitors

It is for the Temple Administration and for the Government as it provides grants to temple to ensure that servitors are looked after properly. At the same time, it is also necessary to ensure that pilgrims are not harassed for obtaining donations and donations are properly accounted.

 I­-Cards for servitors and staff

The servitors and staff should be provided with I­Cards so that unscrupulous persons are not able to present themselves as servitors or staff members and the people are not misled on the basis of wrong identity.

Misbehavior with the women, snatching of ornaments, etc

If incidents relating to the misbehavior with the women, snatching of ornaments, etc are taking place, it has to be dealt with all seriousness with firm hand and there should not be any room for such incidents. There should be a dedicated section of personnel to tighten security inside the temple and only to ensure that no such incident takes place in the Temples and no misbehavior is meted out to women.

The Court also issued various directions on management of Immovable Properties/Quarries/Mines belonging to the Shri Jagannath Temple and maintenance of hygiene in the temple premises.

With respect to valuables of the Temple, the Bench asked the Temple Management to place before it the details of the kind of inventory it has prepared and how it proposes to secure the valuables of the Temple and ornaments offered by the devotees.

The Court will next take up the matter on January 8th, 2020.

[Mrinalini Padhi v. Union of India, 2019 SCC OnLine SC 1415, decided on 04.11.2019]

Case BriefsSupreme Court

Supreme Court: Terming the Hadiya case as the perfect example of “patriarchal autocracy and possibly self ­obsession with the feeling that a female is a chattel”, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ set aside the Kerala High Court verdict and held that the High Court has completely erred by taking upon itself the burden of annulling the marriage between two consenting adults, namely, Hadiya and Shafin Jahan.

Below are the important facts of the case:

  • 24-year-old Akhila alias Hadiya, had converted to Islam after staying with 2 of her friends, Jaseena and Faseena, while completing her Bachelor of Homeopathic Medicine and Surgery (BHMS) degree.
  • Hadiya refused to return to her father Asokan’s place after he filed a writ of habeas corpus before Kerala High Court in January, 2016 on the apprehension that his daughter was likely to be transported out of the country.
  • Hadiya continued to stay at the house of her aforementioned friends. She expressed her desire to complete her House   Surgeoncy   at  the  Shivaraj Homeopathic   Medical   College, Salem which has a hostel for women   where   she   was   willing   to   reside   for   the   purpose   of completing her House Surgeoncy.
  • On 21.12.2016, Hadiya appeared before the High Court and a statement was made that she had entered into marriage with Shafin Jahan. High Court noted that the marriage was totally unexpected.
  • High Court in the impugned judgment held that a girl aged 24 years is weak and vulnerable and capable   of   being   exploited   in   many ways and thereafter, the Court, exercising the parens patriae jurisdiction, observed that it was concerned with the welfare of the girl of her age and hence, the custody of Akhila alias Hadiya should be given to her parents.

The Kerala High Court allowed her to complete her studies but held:

“Her marriage being the most important decision in her life, can also be taken only with the active involvement of her parents. The marriage which is alleged to have been performed is a sham and is of no consequence in the eye of law.”

CJI, writing for himself and Khanwilkar, J, held that non­-acceptance of Hadiya’s choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived.

He wrote:

“The exposé of facts in the present case depicts that story giving it a colour of different narrative. It is different since the State that is expected to facilitate the enjoyment of legal rights of a citizen has also supported the cause of a father, an obstinate one, who has endeavoured immensely in not allowing his daughter to make her own choice in adhering to a faith and further making Everestine effort to garrotte her desire to live with the man with whom she has entered into wedlock.”

Chandrachud, J also came down heavily upon the Kerala High Court for following an erroneous approach and writing down a separate but concurring judgment, said:

“The schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a ‘just’ way of life or ‘correct’ course of living for Hadiya. She has absolute autonomy over her person. Hadiya appeared before the High Court and stated that she was not under illegal confinement. There was no warrant for the High Court to proceed further in the exercise of its jurisdiction under Article 226.”

The Court, however, permitted the National Investigation Agency (NIA) to continue the investigation in respect of any matter of criminality. However, the validity of the marriage between Shafin Jahan and Hadiya shall not form the subject matter of the investigation. The Court made it clear that “nothing contained in the interim order of this Court will be construed as empowering the investigating agency to interfere in the lives which the young couple seeks to lead as law abiding citizens.”

The Court had passed the operative order in the present matter on 08.03.2018.

[Shafin Jahan v. Asokan K.M.,  2018 SCC OnLine SC 343, decided on 09.04.2018]

Case BriefsHigh Courts

Rajasthan High Court: While deciding the instant habeas corpus petition, the Division Bench of G.K. Vyas and Dr. V.K. Mathur, JJ., laid down the following guidelines to check the problem of forcible conversion of religion:

· Any individual who wishes to convert to a particular religion will do so only when they attain the age of majority. The interested individual should also satisfy themselves with the minutiae of conversion to a religion.

· The authorities performing the ceremony of conversion should ensure that whether the person concerned is desirous to change the religion, is having full faith in the newly adopted religion. It should also be ascertained whether such person is acting under any threat or not.

· The person, who is desirous of conversion, shall give information to the District Collector/SDM/SDO of the city concerned before conversion, and the SDM shall put up the information upon the notice board of its office.

· The person, who has converted his religion from one religion to another religion, shall solemnize the marriage/Nikah after one week of such conversion of religion.

· If any marriage in the form of any nomenclature of any religion will be performed after conversion in contravention of above guidelines, then such marriage of any nomenclature can be declared voidable upon complaint of the aggrieved party.

· The aforementioned Guidelines shall be in force till the time Rajasthan Dharma Swatantrya Act, 2006 or any other Act governing the subject-matter came into existence in State of Rajasthan to protect the forcible conversion of religion.

As per the facts of the instant case, the petitioners alleged that the petitioner’s sister was abducted and was forcibly converted to Islam and under duress was married to the 2nd respondent (Faiez). The counsel for the petitioners M.R. Singhvi pleaded before the Court to declare the marriage illegal and that certain Guidelines maybe passed enlarging the scope of the petition and in accordance with the jurisdiction of the Court under Article 226 of the Constitution. The counsel for the respondent Mahesh Bora contended that the allegations leveled against the 2nd respondent are false and that the marriage took place with the consent and willingness of both the parties. It was also contended that scope of this petition cannot be enlarged so as to accept the prayer to issue guidelines in spite of the fact that Rajasthan Dharma Swatantrya Act has been enacted by the State Legislature, which is awaiting assent by the President. The learned Additional Advocate General SK Vyas representing the State Government stated that, the 2006 Act is still awaiting President’s assent and since the nature of the matter is serious, therefore the Court must issue certain guidelines so as to prevent forcible conversion of the people in general and girls in particular.

Perusing the contentions of the parties, the Court observed that every citizen has a fundamental right of freedom of religion under Article 25 of the Constitution, but at the same time, it is the duty of every citizen to protect the feelings of other religions and not act contrary to the provisions of Constitution. Therefore the Court deemed it appropriate to issue the aforementioned Guidelines.

The Court referred to Dwarka Nath v. Income Tax Officer, Special Circle D Ward, Kanpur, (1965) 3 SCR 536 : AIR 1966 SC 81 and Comptroller & Auditor General of India v. K.S. Jagannathan, (1986) 2 SCC 679 : AIR 1987 SC 537, where the Supreme Court had specifically mentioned that under Article 226 of the Constitution of India, the High Court has the authority to issue guidelines in the interest of public.

Furthermore the Court clarified that the petitioner’s sister and the 2nd respondent being adults are at liberty to live their lives as per their choices and the Guidelines issued will not affect their rights. [Chirag Singhvi v. State of Rajasthan through Police Commissioner, 2017 SCC OnLine Raj 3180, decided on 15-12-2017]

Case BriefsInternational Courts

European Court of Human Rights: In the matter dealing with validity of the ban on the wearing in public of clothing that partly or totally covers the face under the Belgian law of 1 June 201, the Court held that the ban does not violate the right to respect for private and family life; freedom of thought, conscience and religion given under Articles 8 and 9 of the European Convention on Human Rights, nor does it violate Article 14 that provides for prohibition of discrimination.

Freedom of thought, conscience and religion

The Court said that ban was valid as it sought to guarantee the conditions of “living together. It was explained that under Article 9 of the Convention the State had a broad margin of appreciation to decide whether and to what extent a restriction on the right to manifest one religion or convictions was “necessary”. In adopting the provisions in question, the Belgian State had sought to respond to a practice that it considered to be incompatible, in Belgian society, with social communication and more generally the establishment of human relations, which were indispensable for life in society. The Court also took note of the fact that the decision-making process leading to the ban in question had taken several years and had been marked by comprehensive debate in the lower house of Parliament and by a detailed examination of the various interests by the Constitutional Council.

Proportionality of the restriction

Considering the sanction for non-compliance with the ban under Belgian law that ranges from a fine to a prison sentence, the Court said that the main sanction is the fine, being the lightest penalty and that imprisonment is reserved for repeat offenders and was not applied automatically. Hence, the ban, even though it was controversial and undeniably carried risks in terms of the promotion of tolerance in society, could be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others”.

Prohibition of Discrimination

Explaining that as per Article 14, a policy or measure can be regarded discriminatory is that policy or measure lacked “objective and reasonable” justification, if it did not pursue a “legitimate aim” or if there was no “reasonable relationship of proportionality” between the means used and the aim pursued, the Court said that the law in question had an objective and reasonable justification for the same reasons.

The Court was hearing the plea of 2 Muslim women who contended that they had decided on their own initiative to wear the niqab, a veil covering the face except for the eyes, on account of their religious convictions. One of the women contended that the ban forced her to remove her veil temporarily, being afraid that she might be stopped in the street and then heavily fined or even sent to prison. While the other said that she had decided to stay at home, with the resulting restriction on her private and social life. The judgment was delivered by a 7-judge chamber consisting of President Robert Spano (Iceland), Julia Laffranque (Estonia), I??l Karaka? (Turkey), Nebojša Vu?ini? (Montenegro), Paul Lemmens (Belgium), Valeriu Gri?co (the Republic of Moldova), Stéphanie Mourou-Vikström (Monaco). [Belcacemi and Oussar v. Belgium, Application no. 37798/13, decided on 11.06.2017]

Case BriefsSupreme Court

Supreme Court: Stating that there is no connection or association of Jallikattu, a festival involving bull race, with the right of freedom of religion in Article 25, the Court said that the Tamil Nadu State Legislature could not have enacted any law like the Tamil Nadu Regulation of Jallikattu Act, 2009 as when a bull is “tamed” for the purpose of an event, the fundamental concept runs counter to the welfare of the animal which is the basic foundation of the Prevention of Cruelty to Animals Act, 1960. There is a frontal collision and apparent inconsistency between the PCA Act and the 2009 Act.

Rejecting the argument by the State of Tamil Nadu that every festival has the root in the religion and when Jallikattu is an event that takes place after harvest, it has the religious flavor and such an ethos cannot be disregarded, the bench of Dipak Misra and R.F. Nariman, JJ said that it is inconceivable that a bull which is a domestic animal should be tamed for entertainment and a wide ground can be put forth that it is not a ticketed show, but meant for celebrating the festival of harvest. Such a celebration for giving pleasure to some, both the participating and the people watching it is such an act that is against the welfare of animals and definitely amount to treating the animal with cruelty.

It was also argued that the 2009 Act falls under Entries 14 and 15 of List II of the VIIth Schedule of the Constitution and, therefore, the test of validity cannot be on repugnancy, the Court rejected the argument and said that solely because the event takes place after the harvest, it cannot be associated with agriculture. As far as Entry 15 is concerned, it provides for preservation, protection and improvement of stock and prevention of animal diseases, veterinary training and practice. The Entry is meant to confer power on the State Legislature to legislate with regard to the preservation, protection and improvement of stock and preventing any kind of animal diseases. Hence, neither Entry 14 nor Entry 15 would cover the 2009 Act.  The activity Jallikattu falls squarely within Entry 17 of List III and, therefore, it has to be tested on the anvil of repugnancy. [Chief Secretary to the Govt., Chennai Tamilnadu v. Animal Welfare Board, 2016 SCC OnLine SC 1397, decided on 16.11.2016]