Bombay HC Allows Two Jain Temples To Open For 5 Days Of Diwali Festival With Fixed Timings [Read Order]

Division bench of Justice SJ Kathawalla and Justice Abhay Ahuja were hearing writ petitions filed by two trusts that are responsible for managing the affairs of two separate Jain temples, one is TAKL Gyan Mandir Trust at Dadar and the other is Sheth Motisha Religious and Charitable Trust at Byculla.

Petitioners sought urgent directions to the State of Maharashtra, Chief Secretary, Department of Revenue and Forests, Disaster Management, Relief and Rehabilitation and Municipal Commissioner, Municipal Corporation of Greater Mumbai (MCGM) to allow the applicants to open their Jain Temples for the Jain devotees, with Standard Operating Procedure during 5 days of Diwali Parv commencing from November 13 to November 17 (both days inclusive) from 6 am to 1 pm and from 6 pm to 9 pm. The petitioners also sought similar reliefs for other Jain temples in the city as well. (102 in total)

According to the petitioners, the occasion of Diwali is a very auspicious occasion for the Hindus and more particularly for the Jain devotees. Each and every day of Diwali has its own importance and during those days, pujas and prayers are performed in a very special way.

Appearing for the petitioners, Advocate Prafulla Shah submitted that the Government of Maharashtra has allowed the opening of malls, restaurants and bars, gymnasium, metro and monorail and even the BEST buses have been permitted to run to their full capacity. The government had issued the SOP's for entries to these said places, thus, there is no reason as to why the temples could not be allowed to remain open and pujas and prayers not be allowed to be performed at least during the 5 auspicious days of Diwali, Adv Shah said.

He informed the Court about the importance and details of each day of Diwali under the Jain Customs and Religion which can be briefly set out as under:-

(i) The First Day – Dhan Teras (Dhanya Teras)

(ii) The Second Day – Kalichaudas

(iii) The Third Day – Amavasya (Dipavali)

(iv) The Fourth Day – The New Year

(v) The Fifth Day – Bahi Beej Parva

He submitted that Jain culture is for upliftment of all living beings and tiny creatures and even the plant kingdom is included as living beings. The provisions contained in Article 25 of the Constitution of India regarding public health is very well taken care of in Jainism, as Jainism inspires its followers to live an environment friendly life.

Rituals like Jin Puja of the deity in temples are mandatorily performed by covering the mouth and the nose of a person. To remain physically contactless in the Jain temple is one of the primary code of conduct since ages and in this time because of pandemic, sufficient care will be taken to follow physical distancing during Diwali, Adv Shah argued.

He further submitted that traditionally, the rituals in Jainism are practiced for thousands of years in a health conscious manner and naturally extra care in this regard will be taken during this period of Diwali. Special arrangements can be made this year for small groups at different times and different places. This will ensure physical distancing and also meet the tradition of performing essential rituals during the said period, Adv Shah added.

Finally. Adv Shah said that the rituals performed during Diwali are considered as an essential and an integral part of religious worship and in fact denial of the said rituals amounts to depriving worshipers of their fundamental right under Article 25 and 26 of the Indian Constitution.

On the other hand, Advocate General of Maharahstra AA Kumbhakoni submitted that on the last two occasions, the State did not oppose, in as much as Paryusan and Ayanbil are rituals which are very specific to the Jain community. However, the festival of Diwali is common to all the Hindus and if the State permits the prayers of the petitioners, that would be discriminatory not only to the Hindu community but also to the other communities, who have not been allowed to open up their places of worship. Therefore by order dated November 9, 2020, the Government of Maharashtra has after taking into consideration the situation and the prevailing circumstances in the State of Maharashtra and more particularly Mumbai City, rejected the request to permit opening of 102 Jain temples between the period from 13.11.2020 to 17.11.2020, AG Kumbhakoni contended.

He further submitted that the petition is not a public interest litigation for opening of temples and places of worship, therefore, petitioners' grievance is to be restricted only to the two temples managed by the petitioners and cannot be extended to 102 temples. He also submitted that the comparison made by the Petitioners between the opening of bars and the opening of temples is unthinkable and incomparable, as the activity in both the places is completely different.

Article 25 of the Constitution of India is subject to public order morality and health and therefore, looking at the ground level position in the State of Maharashtra and particularly in Mumbai and MMR regions, a conscious policy decision is taken to continue with the closure of all places of worship and not permit any religious congregation, without any exception, AG Kumbhakoni submitted.

After hearing the petitioners and the respondents, Court observed-

"Since the Government has now allowed opening of malls, restaurants, bars, gymnasium by following certain SOP's and have also allowed passengers to commute by trains/ monorail and metro service, and since the Petitioner's are not wanting to form any congregation by way of procession, etc. we are of the view that the performance of the Pujas like Dhup (Incense) Puja, Deepak (Candle) Puja, Akshat (Rice) Puja, Naivedya (Sweet) Puja, Fal (Fruit) Puja, Vandan Kirtan, in the manner proposed by the Petitioner by maintaining norms of social distancing and following the applicable SOP's in the manner suggested by them, will not cause any injury or prejudice to any one."

The bench noted that on the last two occasions when limited permission (during Paryushana festival) has been granted, there has been no case of non-compliance in following the SOPs or the guidelines while performing the rituals permitted by the Courts.

Finally, Court relied upon the decision in Viraf D. Mehta v/s. The Municipal Corporation of Greater Mumbai and others where another bench of the High Court had allowed the petitioner to perform prayers on September 3, 2020 between 7 am and 4.30 pm at Doongerwadi so that restricted members of the Parsi community could pray for their close departed souls.

Thus, Court allowed both jain temples to open for the performance of Pujas referred to above, during the 5 days of Diwali Parva from November 13, 2020 to November 17, 2020 (both days inclusive) at the fixed time from 6 am to 1 pm and from 6 pm to 9 pm for not more than 8 persons at a time for 15 minutes in the temple hall.

The bench clarified that this order shall be restricted to the two the temples referred to above and cannot be used as a precedent by other persons to seek permission to hold any festivals/ festivities which would involve by their nature, congregation of people