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Court refuses to remove the prohibition on Muharram processions, stating Covid-19 as “unprecedented situation”

Dated: August 29, 2020

                                                                                                                                                          - By Megha Bhatia

Muharram is around the corner and the processions carried out during it are old religious practice. But in lieu of the coronavirus pandemic, which is spreading like wildfire, The Supreme Court on August 27th, 2020 refused to allow Muharram processions across the country. The apex court said the processions would lead to chaos and “one particular community will be targeted.” The processions were expected to begin on Friday i.e. August 28.

“If we allow this procession across the country, there will be chaos and one particular community will be targeted for spreading the pandemic COVID-19,” Chief Justice SA Bobde said.

Access to Temples

The Supreme Court was hearing a petition by Syed Kalbe Jawad, a prominent person in Uttar Pradesh’s Shia community. In the petition, Jawad had cited the June order from the SC, which provided permission to the Odisha Rath Yatra festival. 

The Chief Justice of India said, “You are referring to the Puri Jagannath Rath Yatra, that was at one place and one set route. In that case, we could assess the risk and pass orders. The difficulty is you are asking for a general order for the whole country.” He further added, “We cannot risk the health of all people. If you had asked for one place, we could have assessed the risk.”

The CJI had orally remarked a few days ago how the court found it “strange that they [authorities] are willing to allow activities involving economic interests, but if it involves religion, they cite COVID to say they cannot open.”

Mr. Azim H. Laskar, appearing for prominent Shia cleric Syed Kalbe Jawad, referred to how the court had given access to Jain temples for the occasion of Paryushan. To this the CJI replied, “That was specifically for three Jain temples in Mumbai. We only allowed five people at a time.”

The court rendered it plain in its August 21 order in the case of the Jain temples that its decision to give worshippers entry to the particular Jain temples in Mumbai does not, by implication, apply to other temples, trusts or other religions. It said that its approval during Ganesh Chaturthi would not function as a template for authorizing congregations.

The Supreme Court argued that granting unconditional permission for the country as a whole is not feasible because the states were not a party to the petition. Then, Jawad only sought permission for a procession in Lucknow as a large number of Shia Muslims reside in the UP city. To this, the SC replied that complainant is seeking permission for Lucknow only, then they can approach to the Allahabad High Court for it.

Allahabad High Court’s Decision

The Allahabad High Court on August 29, 2020 declined to permit the conduct of Muharram processions in Uttar Pradesh stating the same reason as given by the Apex Court. The Allahabad High Court rejected a bunch of petitions adding that the move was very much in relation to “unprecedented situation.”

The Bench of Justices Shashi Kant Gupta and Shamim Ahmed has refused petitions calling into doubt the directives of the Uttar Pradesh government banning large assemblies for religious and other purposes.

Delivering its judgment on the matter, the Court said, “... 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 Muharram.”

The Court further stated, “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.”

The petitioners challenged the August 10 UP government order declaring a complete ban on Tazia Procession in Muharram, Uttar Pradesh Province. Highlighting the social distancing standards might not be followed during the procession the bench explained:

“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.”

They had pleaded with the Court to give a direction to the UP government to ensure that the related Muharram practices, procedures and rituals are not obstructed if they are performed for each ritual/rite/ceremony by as much as five people as possible. Refusing to consider this request, the court stated, “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 claimed that Muharram and its related rites and practices are an “integral part” of Shia faith, and that a total ban on the same would harm 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 claimed that religious places were opened in compliance with Unlock 1 Guidelines, but on the solemn occasion of Muharram, the State does not permit religious ceremonies/prayers “with the intent of hurting religious sentiments of the Shia Muslims.” 

However the Court stressed that the rate of Covid-19 transmission in the State of UP is “alarmingly high” and “although the complete prohibition of practices which re 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 darkness”

On the other hand, The Bombay High Court on has 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.