Freedom Of Religion Can't Trump Demands Of Public Order: Madras HC [Read Order]

Justice GR Swaminathan was considering writ petitions filed by some Muslim organisations seeking police protection in the event of any funeral procession through Kottaikaliamman Street situated in Balasamudram Village, Dindigul District, Tamil Nadu.

The court noted that the restriction applies only under three circumstances, (a) during pooja time, (b) during festival time and (c) on special occasions such as Kumbabishekam. The court also noted that the restriction applies to taking of funeral processions of all religions and also that an alternative route exists for taking funeral processions.

The court observed that insistence that the funeral procession will be taken only through Kottaikaliamman Temple Street during the Mandala period following Kumbabihsekham is certainly an invitation to communal trouble which would only encourage the communal and fundamentalist elements on either side. The court said:

""The deities of a temple are taken in a procession through the public streets. A number of temples do have chariots for carrying the deities through what are known as "Therodum Veethi". Of course, they are public streets. When a deity is being taken in a procession, can a funeral procession overtake it? Can one be heard to contend that through a public street, one can take funeral procession even if a deity is going in front? If such arguments are going to be countenanced, the communal amity prevailing in the society will come under severe strain."

The bench also observed that though the authorities cannot insist that the essential religious practices must be given up, the right to freedom of religion will have to give way to the demands of public order. The bench, while dismissing the plea, observed:

"Let us not forget that the nation was vivisected in the name of religion. The Muslim-majority regions became Pakistan which declared itself an Islamic State. India chose to tread the path of secularism. The constitution is our grundnorm. The fabric of secularism that has been so carefully woven should not be torn asunder by permitting the right to freedom of religion to trump the demands of public order."

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