Gulam Abbas & Ors Vs. State of
U.P. & Ors [1983] INSC 128 (23 September 1983)
TULZAPURKAR, V.D.
TULZAPURKAR, V.D.
DESAI, D.A.
SEN, A.P. (J)
CITATION: 1983 AIR 1268 1984 SCR (1) 64 1984
SCC (1) 81 1983 SCALE (2)704
ACT:
Constitution of India-Arts. 25 and 26-Scope
of-Exercise of religious rights is subject to maintenance of public
order-Shifting of graves for the purpose of maintaining public order is not
irreligious or destructive of fundamental rights.
HEADNOTE:
While deciding a writ petition relating to
the dispute regarding performance of religious rights, practices and
observances by members of Shia sect on a plot of land in a mohalla, the Court
permanently restrained the Sunni community of that mohalla by an injunction
from interfering with the exercise of such rights of Shia community. However,
the Court found that in an earlier litigation the Sunni community had been
given the liberty to read Fathia over the grave of Maulana Hakim Badruddin only
found to exist in the plot and that the other two graves had come up contrary
to the Court's injunction in the earlier litigation. Notwithstanding the above
decision the members of Shia community apprehended breach of peace and
disturbance of public order and the Court had to give directions on each
occasion with a view to ensure that all the ceremonies went off smoothly. The
Court, with a view to find some permanent solution to this perennial conflict
between the two sects, appointed a committee to go into the question, inter
alia, whether the two other graves now found in that plot could be shifted to
some other convenient place. The Chairman of the Committee opined that the
suggestion to shift the two graves located on the northern side of the plot to
the south of the grave of Maulana Hakim Badruddin was quite feasible as there
was sufficient space in the suggested area and that such shifting of the two
graves will totally separate the places of worship of Shias and Sunnis. The
petitioners (Shias) filed the present petition for issuance of directions to
implement the above suggestion.
Allowing the petition,
HELD: The suggestion to shift the two graves
cannot be regarded as irreligious or destructive of any fundamental rights of
the Sunnis. [69G; 71E] Articles 25 and 26 of the Constitution undoubtedly
guarantee (a) to all persons freedom of conscience and free profession,
practice and propagation of religion and (b) to every religious denomination or
any section thereof freedom to manage its own affairs in matters of religion
but both these fundamental rights have been expressly made "subject to
public order, morality and 65 health". The impugned suggestion was mooted
by the Court and has now been found to be feasible by the Chairman of the
Committee in the larger interest of the society for the purpose of maintaining
public order on every occasion of the performance of their religious ceremonies
and functions by members of both the sects. Over several years in the past
experience has shown that such performance of their religious ceremonies and
functions was and has been invariably accompanied by ugly incidents of
violence, damage or destruction to life and property putting public order in
great jeopardy or that the performance by members of both the sects was
required to be prohibited by orders under s.
144 Cr. P.C. The latter course benefits
neither and obviously members of neither community could be permitted to
exercise their fundamental rights under Arts. 25 and 26 so as to put public
order in jeopardy. [69 H, 70 A-D] The religious rights of every person and
every religious denomination are subject to "public order", the
maintenance whereof is paramount in the larger interest of the society. The
ecclesiastical edict or right not to disturb an interred corpse is not absolute
as will be clear from sec. 176(3) of Criminal Procedure Code which permits its
exhumation for the purpose of crime detection and this provision is applicable
to all irrespective of the personal law governing the dead. The edict clearly
implies that it may become necessary to shift graves in certain situations and
exigencies of public order would surely provide the requisite situation,
especially as the fundamental rights under Articles 25 and 26 expressly made
subject to public order. [71 B-D] The impugned suggestion merely seeks to shift
those two graves from their present location to the southern side of the grave
of Moulana Hakim Badruddin and if taken in proper spirit it would in a sense
amount to respecting the sentiments of the Sunni Muslims, for, after placing
them to the south of the grave of Maulana Hakim Baddruddin, the Chaddar
functions and recitation of Fathia could be undertaken by them at all the three
graves instead of only at the grave of Maulana Hakim Badruddin. [70 F-H] The
main decision rendered by this Court and the directions issued by it have to be
implemented and removal of any impediment or obstruction in that behalf cannot
be said to be beyond the powers or jurisdiction of this Court and since the
acceptance and implementation of the impugned suggestion of the Chairman of the
committee would facilitate the carrying out of the main judgment of this Court
the issuance of directions sought by the petitioners would obviously fall
within the scope of the present proceedings.
[71 F-G]
CIVIL APPELLATE JURISDICTION: Civil Misc.
Petition No. 4939 of 1983.
(Appln. for directions) IN Writ Petition No.
4675 of 1978.
(Under Article 32 of the Constitution of
India) 66 A. K. Sen, Mrs. Urmila Kapoor and Hashan Imam for the Applicant.
F.S. Nariman, M. Qamaruddin, Altaf Ahmed and
Rizwan Hafiez for the Opposite side.
The Order of the Court was delivered by
TULZAPURKAR, J. This Miscellaneous Petition for directions is an off-shoot of
this Court's decision in the main Writ Petition No. 4675 of 1978, referred on
November 3, 1981, in a dispute inter se between the members of the Shia and
Sunni sects of Muslims of Varanasi, pertaining to the performance of religious
rites, practices and observances by members of Shia sect on certain plots and
properties situated in Mohalla Doshipura, Varanasi. The final result in that
matter was expressed by this Court in these terms:
"In the result we held that the
petitioners and through them the Shia community of Mohalla Doshipura, Varanasi,
have established their religious rites, practices observances, ceremonies and
functions minus the recitation and utterance of Tabarra (detailed in the writ
petition) over the plots and structures in question and respondent 5 and 6 and
the Sunni community of Mohalla Doshipura are permanently restrained by an
injunction from interfering with the exercise of said rights in any manner by
the petitioners or members of Shia community and respondents 1 to 4,
particularly the executive magistracy Varanasi is directed, if action under s.
144 Cr. P.C. is required to be taken, to issue their orders under the said
provision having regard to the principles and the guidelines indicated in that
behalf in this judgment." So far as the members of the Sunni community are
concerned, in view of the ultimate decisions rendered in two earlier suits
(Suit No. 424 of 1931 and Suit No. 232 of 1934) this Court found that all the
rights which the Sunnis had claimed in those representative litigations stood
finally negatived except for one religious practice for which some liberty was reserved
to them. To recapitulate the precise liberty reserved to them, it needs to be
stated that in Suit No. 424 of 1931 there was prayer for actual removal of
graves, if 67 any, found on plot No. 602/1133, that the evidence clearly showed
that there was only old grave of Maulana Hakim Badruddin situated on the
southern side of the said plot existing since 1307 Hazri and it was with regard
to this grave that the Court had observed that it would be a bit improper that
the soul of the dead be stirred and the defendants be ordered to remove the
same and they (Sunni Muslims) were given liberty to read Fathia over that grave
but what is significant is that the Court issued permanent injunction
restraining the defendants and through them the Muslims of Varannsi (in fact
the Sunni Muslims) from using the plot in future as burial ground. Even the
liberty to read Fathia over grave of Maulana Hakim Badruddin was to be
exercised with due regard to the rights of the Maharaja. In other words,
excepting this liberty to read Fathia over the grave of Maulana Hakim Badruddin
the Sunni Muslims did not have any other rights over the plot in question. All
other rights in regard to performance of religious rites, practices and
observances over the other plots of structures thereon were negatived in Suit
No. 232 of 1934. It is obvious that their rights cannot be enlarged or reduced
in these proceedings. However, as regards the mosque standing on plot No. 246
is concerned this Court clarified the position that it belonged to both the
communities and members of both were entitled to perform their worship by
offering prayer and namaz therein.
Notwithstanding the aforesaid clear and
categorical decision of this Court it appears that during the two Moharram
festivals that were to be celebrated in December 1981 and October 1982, grave
apprehensions of breach of peace and break-down of public order were
entertained by members of the Shia community and on each occasion directions
were required to be given by this Court with a view to ensure that all the
ceremonies at the festivals went off smoothly and peacefully and
notwithstanding the directions issued by this Court on the occasion of the 1981
festival some ugly incidents of violence, stone-throwing, hurling of acid bulbs
bottles, etc. did occur in respect whereof contempt proceedings were required
to be taken and criminal cases are pending. It may also be stated that on the
occasion of Barawafat ceremony which was desired to be performed by the Shias
on 9.1.1982, the Sunnis also wanted to have their Chaddar function and reading
of Fathia on the grave and, therefore, this Court with a view to avoid any
possible breach of peace had to direct that only Shias would be allowed to
perform their ceremonies and the Sunnis were restrained from performing 68
Chaddar ceremony and reading of Fathia at the graves on 9.1.1982 and it was
made clear that this arrangement was without prejudice to the contention of
Sunnis with regard to their above function which would be decided later on. On
the occasion of 1982 Moharram festival this Court was required to pass an order
on 4th October, 1982 that Chaddar function and reading of Fathia at the graves
will not be permitted to be done or performed by the Sunnis on those dates on
which the Shias were going to have their functions with a view to avoid clash
between the two communities; by way of further clarification this Court on
November 16, 1982, gave a further direction that the grave of Maulana Hakim
Badruddin on plot No. 602/1133 abutting on the road would be the venue for the
Sunnis to perform on that grave the Chaddar function and reading of Fathia
between stated hours (8 a.m. to 1 p.m.) on 19th, 20th and 21st November, 1982
and that the Sunnis will have access to that grave only from the public road
and the District Magistrate was directed to cordon off the area and make
necessary security arrangements during those functions on the aforesaid dates
and time at the cost of Sunnis. We are referring to these events that have
transpired since after the rendering of our main decision in Writ Petition No.
4675 of 1978 because they clearly suggest that some permanent solution of this
perennial conflict between the two sects over the performance of their
religious ceremonies and functions is desirable so that their religious
ceremonies and functions could be performed in future without any violence,
breach of peace and disturbance of public order.
With the aforesaid end in view by our order
dated 4th October, 1982 we appointed a Committee of seven persons consisting of
these nominees of the Shias, three nominees of the Sunnies under the
Chairmanship of the Divisional Commissioner of Varanasi (present incumbent Shri
S. K. Mukherjee) for going into and submitting its report to us on two
questions:
"(i) Whether the two graves on plot No.
602/1133 could be shifted to some other convenient place; and (ii) If that is
not possible whether the two graves could be cordoned off by a wall of
sufficient height with an independent outlet (for entry and exit) ? It appears
that the Committee held two meetings to deliberate on the two issues and the
representatives of both the communities 69 expressed their views and after
considering all the pros and cons the Chairman has submitted a report dated
9.12.1982 to this Court. The report states that Sunnis vehemently opposed the
idea of shifting of any grave from its present site and even with regard to the
proposal of the cordoning off the two graves by a wall they were not agreeable.
The Chairman has, however, after undertaking a spot inspection of plot No.
602/1133 and the adjoining plots, opined that the suggestion to shift the two
graves located on the northern side of plot No. 602/1133 to the south of the
grave of Maulana Hakim Badruddin (situated in the same plot) is quite feasible
as there is sufficient space in the suggested area and that such shifting of
the two graves will totally separate the places of worship of Shias and
Sunnies. C.M.P. No. 4939 of 1983 has been filed by the petitioners (Shias) for
issuance of directions to implement the suggestion made by the Chairman of the
Committee.
The Sunnis have raised two objections to the
acceptance of the suggestion of the Chairman, namely, (a) the suggestion has
not only hurt the sentiments of the majority community of Sunni Muslims but is
destructive of their fundamental rights and fraught with dangerous consequences
and (b) the suggestion in any event is outside the jurisdiction of the Court
and the scope of the proceedings before it. In our view, there is no substance
in either of the objections.
At the out-set it needs to be clarified that
the question whether the two graves in plot No. 602/1133 could be shifted to
some other convenient place was mooted by this Court not with a view to hurt
the sentiments of Sunni Muslims, who constitute a majority community in Mohalla
Doshipura, Varanasi, but purely for the purpose of finding out some permanent
solution to this perennial conflict between the two communities and to ensure
smooth and peaceful performance of their religious ceremonies and functions in
future in an atmosphere of cordiality and amity between them and a Committee
was appointed to ascertain feasibility of the proposal. Further, the proposal
has now been found to be feasible by the Chairman of the Committee and the same
cannot be regarded as destructive of any fundamental rights of the Sunnis as
contended. Articles 25 and 26 of the Constitution, on which strong reliance was
placed by counsel for the contesting respondents representing the Sunni
community in that behalf, undoubtedly guarantee (a) to all persons freedom of
conscience and free profession, practice and 70 propagation of religion and (b)
to every religious domination or any section thereof freedom to manage its own
affairs in matters of religion but both these fundamental rights have been
expressly made "subject to public order, morality and health". In
other words, the exercise of these fundamental rights is not absolute but must
yield or give way to maintenance of public order and the impugned suggestion
was mooted by the Court and has now been found to be feasible by the Chairman
of the Committee in the larger interest of the society for the purpose of
maintaining public order on every occasion of the performance of their
religious ceremonies and function by members of both the sects. Over several
years in the past experience has shown that such performance of their religious
ceremonies and functions was and has been invariably accompanied by ugly
incidents of violence, damage or destruction to life and property putting
public order in great jeopardy or the performance by members of both the sects
was required to be prohibited by order under s. 144 Cr. P.C. The latter course
benefits neither and obviously members of neither community could be permitted
to exercise their fundamental rights under Arts. 25 and 26 so as to put public
order in jeopardy and as such there is no question of the impugned suggestion
being destructive of any fundamental rights of the Sunnis.
If the Court finds the implementation of the
suggestion to be eminently fit in the interest of maintenance of public order
consent of either party would be immaterial. Moreover, in the instant case,
admittedly only one old grave of Maulana Hakim Badruddin was found to be
existing in plot No. 602/1133 since 1307 Hazri when Suit No. 424 of 1931 came
to be decided and obviously the two graves in question have come up on the
northern side of the same plot in breach and defiance of the Court's order, and
surely the Sunni Muslims cannot claim any right to retain them on the plot,
much less a right to perform Chaddar function or recitation of Fatia over those
graves. However, the impugned suggestion merely seeks to shift those two graves
from their present location to the Southern side of the grave of Maulana Hakim Badruddin
and if taken in proper spirit it would in a sense amount to respecting the
sentiments of the Sunni Muslims, for, after placing them to the grave of
Maulana Hakim Badruddin, the Chaddar functions and recitation of Fathia could
be undertaken by them at all the three graves instead of only at the grave of
Maulana Hakim Badruddin.
Counsel for the Sunnis relied upon five
'Futwas' issued by their religious heads (Head Muftis and Shahi Imams) from
Delhi, 71 Banaras and Patna stating the position under Sheriat Law.
The common theme in all these Futwas is that
under Sheriat Law respecting of graves is the religious obligation of every
Muslim, that shifting of dead bodies after digging old graves in which they are
lying buried is not permissible and to do so would amount to interference with
their religious rights. True, this position under Sheriat law cannot be doubted
but as explained earlier the religious rights of every person and every
religious denomination are subject to "public order", the maintenance
whereof is paramount in the larger interest of the society. For instance, the
ecclesiastical edict or right not to disturb an interred corpse is not absolute
as will be clear from the sec. 176 (3) of Criminal Procedure Code which permits
its exhumation for the purpose of crime detection and this provision is
applicable to all irrespective of the personal law governing the dead. In fact,
quoting a Hadit, one of the Fatwas relied upon by the contesting respondents
states "unnecessary shifting of graves is also not permissible". The
edict clearly implies that it may become necessary to shift graves in certain
situations and exigencies of public order would surely provide the requisite
situation, especially as the fundamental rights under Articles 25 and 26 are
expressly made subject to public order. In the circumstances in directing the
shifting of two graves in question for the purpose of maintaining public order
which would be in the larger interest of the society, we do not think that we
are doing anything irreligious. In the circumstances the first objection is
overruled.
As regards the second objection, we fail to
appreciate as to how the impugned suggestion of the Chairman of the Committee
is beyond the powers of this Court or outside its jurisdiction or outside the
scope of the proceedings before us. The main decision rendered by this Court
and the directions issued by it have to be implemented removal of any
impediment or obstruction in that behalf cannot be said to be beyond the powers
or jurisdiction of this Court and since the acceptance and implementation of
the suggestion of the Chairman of the committee would facilitate the carrying
out of the main judgment of this Court the issuance of directions sought by the
petitioners would obviously fall within the scope of the present proceedings.
C.M.P. has, therefore, to be allowed.
A plan marked Annexure 'A' hereto and made a
part of this order clearly indicates the boundary wall that has to be
constructed surrounding some of the plots over which the Shias have to perform
72 their functions, ceremonies, rites, practices and observances as also the
exact location of the spots where the two graves in question are to be
installed after shifting them from their present site, being two spots to the
south of the old grave of Maulana Hakim Badruddin with exact dimensions of open
spaces surrounding the three graves that are required to be maintained and
cordoned off by a wall of 12 ft. in height On the shifting of the two graves in
question to the south of the Maulana Hakim Badruddin's give the three graves
would be abutting the road on west as indicated in the plan. We direct that the
aforesaid operation of constructing the boundary wall and shifting the two
graves in question and installing them at the spots indicated in the plan
should be carried out by the District Magistrate of Varanasi under the
direction and supervision of the Divisional Commissioner, Varanasi and in the
presence of the representatives of the Shia and Sunni communities (being the
members of the Committee) and the operation should be completed in all
solemnity and with due regard to rituals, if any, without any delay and
preferably before the advent of Moharram festival of 1983. Co-operation of
members of the communities should be secured by the Divisional Commissioner and
in case any one of the sects or its members refuse to co-operate, the members
of that sect are restrained from causing any obstruction to the aforesaid
operation. The petitioners and members of Shia community have undertaken to
bear and pay the entire cost of aforesaid operation.
It is clarified that the order and directions
hereby given are intended to bind the parties hereto and all members of Shia
and Sunni Muslims of Varanasi but will not affect the rights, if any of third
parties such as the Maharaja of his heirs of legal representatives over the
plots in question.
H.S.K. Petition allowed.
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