'Complete Prohibition Of Essential Religious Practices Is In Proportion To The Unprecedented Pandemic': Allahabad HC Refuses To Permit Muharram Processions [Read Order]

The Division Bench comprising Justices SK Gupta and Shamim Ahmed observed,

"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."

The Court also said that complete prohibition of practices which are essential to our religions is very much in proportion to the unprecedented situation we are faced with. The order has come in a petition filed by a Meerut resident, Japher Abbas, through Advocates Sayyed Kashif Abbas Rizvi and Joun Abbas, heard alongside a batch of similar petitions.

The Petitioners had assailed the UP Government order dated August 10, announcing a total prohibition on Tazia Procession in Muharram in the State of Uttar Pradesh. Highlighting that it may not be possible to observe social distancing norms during the procession the bench explained thus:

"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."

The Petitioners had sought parity with the Guidelines issued by the Election Commissioner of India, permitting five persons to do door to door campaign during COVID 19 Pandemic.

They had pleaded the Court issue a direction upon the UP Government to ensure the Moharram rites, ceremonies and rituals associated are not obstructed if they are conducted by five persons or less for each ritual/ rite / ceremony. Refusing to entertain this plea the Court said,

"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."

The Petitioners had contended that Muharram and the rites and rituals associated with it are an "integral part" of the Shia faith and therefore, an absolute prohibition on the same shall affect their religious rights. "The Constitutional guarantee regarding freedom of religion enunciated in Article 25 of the Constitution of India extends to the practice of that particular religion and encompasses all rites and ceremonies associated with the same," they contended.

It was further contended that religious places have been opened as per Unlock 1 Guidelines however the State is not permitting religious ceremonies/ prayers on the solemn occasion of Muharram "with the intent of hurting religious sentiments of the Shia Muslims".

However the Court emphasized that the intensity of Covid-19 transmission in the State of UP is "alarmingly high" and "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 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."

Before parting the bench remarked,

"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 us the opportunity to celebrate all festivals with greater faith and fervour in future. It is only together with cooperation, understanding and support, we as 'One Nation', can emerge stronger from these treacherous times and overcome this season of darknes"

On Thursday, the Supreme Court had refused to grant permission to hold Muharram Procession amid the Covid19 pandemic. A bench of CJI SA Bobde, Justices AS Bopanna & V. Ramasubramaniun observed that granting general directions to take out the procession across the country shall lead to chaos & a particular community may then be targeted for spreading the virus.

The Bombay High Court on Friday allowed only five persons along with a videographer to carry Tazia processions during Muharram on August 30 from 4:30 pm to 5:30 pm. the Court clarified that it will be the only Tazia carried in the entire State of Maharashtra.

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Click Here To Download Petition