Full Judgment Text
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PETITIONER:
GULAM ABBAS AND OTHERS
Vs.
RESPONDENT:
STATE OF U.P. AND OTHERS
DATE OF JUDGMENT23/09/1983
BENCH:
TULZAPURKAR, V.D.
BENCH:
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 be existing
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]
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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
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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]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Misc. Petition No.
4939 of 1983.
(Appln. for directions)
IN
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Writ Petition No. 4675 of 1978.
(Under Article 32 of the Constitution of India)
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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
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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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