Ban on Idol immersion on 1st October 2017 in West Bengal
Validity of ban on day of Moharram
Durga Puja is celebrated throughout the State and epitomizes the victory of the good against the evil. It is one of the major festivals of the Hindu community and the performance of each rituals which is inherent and inbuilt is followed in a time schedule as provided in various almanac or panjikas.
One of the important customs is Devi Baran followed by Sindoor Khela which can only be performed after sunset and are sine qua non to customary rites and ceremonies before the immersion of the Idol. Large sections of the Hindu community are performing the Puja privately or through community, which not only attached to their sentiments and religious belief but the sense of security as well that it would bring all good in their life. Equally, the Muslim communities are sensitively attached to mourning on the eve of Muharram. Both the sections of the society can profess and propagate their religion with harmony and unified manner. The founding father of the Constitution
never dreamt of any artificial or real distinction amongst each religions in the country and incorporated Articles 25
and 26 in Part-III of the Constitution.
It is axiomatic to record that the State has no religion, which is one of the fundamental facets underlying secularism. There should not be any order of precedence in performance of the religious rites, rituals, ceremonies and mourning amongst the religious communities. There should be an equality in every citizen’s right with corresponding obligation of very State to protect the same.
The provisions from the different Police Regulations and the Police Act, 1861, relied upon by the learned Advocate General essentially applies in different field occasioning the application for license when an apprehension is anticipated of public tranquility on an impeccable and discreet materials and report and not on a mere surmise and conjecture, assumption or presumption. Though the power is enshrined under the aforesaid provisions upon the Magistrate or the Superintendent of Police, as the case may be, but such power can only be exercised in the event, the condition set forth therein is truly satisfied and supported on the basis of an incorrigible materials or the reports.
There is no material available with the State, far to speak of any cogent or convincing material and the impugned orders which can be decided by the court on the ground of fairness, reasonableness, arbitrariness, discriminatory and colourable exercise of power.
Both the Articles 25 and 26 of the Constitution protects the right of a citizen to practice rituals, profess their religion and does not abridge or overturn the faith which is the foundation of any religion.
Apart from the same, Article 26 confers a positive right on an individual or religious denomination or any section thereof to manage its own affairs in the matter of religion which cannot be abridged or interfered with at all unless there is a solid and concrete foundation leading to any apprehension or possibility of untoward incidents. In such a case, where there is any possibility or apprehension for disturbance of peace, the State is to take steps to prevent or regulate which in the instant case can be done by issuance of license, then to stop a religious sect or community from exercising its faith and rituals on any day. It is certainly not a case of morality, health and to other provisions of the said part but the restrictions and/or prohibitions are based upon the maintenance of law and order and on possibility of untoward incidents.
A query was raise by the court to the learned Advocate General on the number of applications seeking license from the Muslim community for procession (Tazia) to observe mourning on the eve of Muharram or on a Muharram day. Only one application could be produced which does not reveal any discord or disharmony because of the conflict between these two religious communities in the State of West Bengal. There should be a reasonable basis to form an opinion that there may be a possibility of untoward incident if both the religious sections of the society performs or observe the procession under their religious compulsions. No case has been made out in course of an argument that there was any past antecedent, which may reasonably lead to the possibility to untoward incidents for which the reasonable restriction or prohibition can be made in the interest of maintaining law and order.
There is not the slightest of doubt in our mind that the State can regulate the procession or the religious ceremonies to be performed but it does not vest them an absolute and/or inchoate power to prohibit a performance
of ceremony in absence of any materials sufficient enough for formation of such opinion/decision.
We are tempted to quote the observations of the Single Bench dealing with the writ-petition being WP 24471 of 2016 when an identical restriction and prohibition was imposed in the following manner:-
“It has been ascertained from Mr. Majumder that number of processions (tajia) taken out on the roads, streets and thoroughfares in the State of West Bengal on the eve of Muharram is not known to the administration. No effort worth the name has been made to satisfy this Bench that processions (tajia) on the eve of Muharram are an inseparable part of the mourning that is associated with Muharram. There has never been a holiday declared either by the Central Government or the State Government, on the eve of Muharram to facilitate processions (tajia). There has been a clear endeavour on the part of the State Government to pamper and appease the minority section of the public at the cost of the majority section without there being any plausible justification. The reason therefor is, however, not far to seek
It also does not appear that there has been any study undertaken by the police administration of the State for identification of routes to be followed by those associated with immersion of Durga idols and
those associated with processions (tajia). The administration has failed to take note of the fact that Muharram is also not the most important festival of people having faith in Islam. To put it curtly, the
State Government has been irresponsibly brazen in its conduct of being partial to one community, thereby infringing upon the fundamental rights of people worshipping Maa Durga.”
We make it clear that the State being a welfare State, does not have any right to curb or do away with the rituals of any community on a certain date or dates. In the instant case, as indicated above, the order dated September 9, 2017 and clarificatory order dated September 14, 2017 are issued without any reasonable basis and clearly creates a distinction between the rights of the two religious communities which does not appear to be sound and healthy for unified secular country.
It is within the competence of the State to designate a separate route both for the procession (Tazia) by the Muslim community and the procession for immersion of the Durga Idol on September 30, 2017 or even on October 1, 2017 if the immersion is found permissible, shall ensure that adequate protections are provided to maintain the public order or the peace and harmony.
[Extracted from Subhankar Chakraborty Vs. State of West Bengal decided by Calcutta HC on 21 September 2017]