Madras High Court Allows Muharram Processions In Ervadi, Says Fundamental Rights Must Take Precedence Over Fundamentalist Forces

Justice GR Swaminathan emphasized that the right to conduct a religious procession was protected under Article 19(1)(b) and (d) of the Constitution and it was not open for members of fundamentalist Thowheed Jamath to dictate how other members should conduct the festival. The court also added that when one's fundamental rights were under threat, the administration had a duty to uphold the rights but it was unfortunate that the administration had succumbed to the threats held out by the Thowheed Jamath members.

“It is unfortunate that the District Administration chose to succumb to the threats held out by the fundamentalist elements. If one's fundamental rights are under threat, the duty of the administration is to uphold the rights and put down those interfering with the exercise of the rights. Fundamental rights shall take precedence over fundamentalist forces. If the District Administration is to take the easy and lazy option of prohibiting the exercise of the right by citing law and order issues, it would betray their impotence,” the court said.

The court also remarked that like language, religion was not the same everywhere, and if the people in Ervadi believed in Music, the beat of drums, horse, and chariot processions, to expect them to conform to Saudi Arabian practice was nothing short of a Talibanic outlook.

“If language will not be the same everywhere, religion also cannot be otherwise. Mathematics alone will be the same all over. There is something universal about it. There is nothing Mathematical about religion though there can be a set of universal values. Religion will acquire different shades and flavors based on one's lived experience. The people in Ervadi believe in Music, Beat of Drums and Horse and Chariot Processions. To expect them to conform to Saudi Arabian practice is nothing short of Talibanic outlook,” the court said.

The court stressed that the Thowheed group was entitled to hold on to their beliefs but could not prevent others from practicing their version of Islam. Further, the court ordered that if the group disliked the procession, they could stay indoors and not participate. The court, thus allowed the petition and made way for the Muharram procession.

The court was hearing a petition filed by Thameem Sindha Madar. Madar submitted that there could not be any prohibition on the right to conduct religious processions.

The State authorities informed the court that there was severe opposition from the members of Thowheed Jamath regarding carrying on the processions. The police informed the court that the procession was being conducted without any obstruction or objection for several decades and it was in 2011 that an objection was raised by the Thowheed group. It was informed that following certain unpleasant incidents, a consensus was made to have only four events. However, the police informed the court that they were ready to provide protection based on the court's order.

The court noted that the beating of drums is an intrinsic part of religious and social events in the country. The court also noted that the Santhanakoodu festival was celebrated by several mosques in Tamil Nadu and had been going on for centuries.

While the court acknowledged that similar reliefs were rejected previously, the court noted that the orders were based on resolutions passed in peace committee meetings that are not legally enforceable. The court observed that no binding proposition of law was laid down on any of the previous orders.

Counsel for Petitioner: Mr.G.Prabhu Rajadurai

Counsel for Respondent: Mr.K.Balasubramani, Special Government Pleader, Mr.Albert James, Government Advocate (crl.side), Mr.T.Lajapathi Roy, Senior Counsel for Mr.T.Seeni Syed Amma, Mr.S.Balaji

Citation: 2024 LiveLaw (Mad) 281

Case Title: Thameem Sindha Madar v The District Collector and Others

Case No: WP(MD)No.9603 of 2024