This article has been written by Manav Sharma, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho. The article has been edited by Zigishu Singh (Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho).

Introduction

The High Court of Madras while making the verdict in this case, strongly relied on the secularism ideals enshrined in the Indian Constitution and formed the opinion that one cannot dispute over the fact that, a particular street belongs to the group of people who are residing therein the majority, as well as, the citizens are not allowed to indulge in any kind of acts which may disturb the law and order situation due to the communal disharmony. 

The Hon’ble High Court of Madras has made the observation in this case that:

“India is a secular country and merely because one religious group is living in majority in a particular area, it cannot be a reason for not allowing other religious festivals or processions through that area.”[1]

This verdict has followed the ideology of Secularism and has described how the fundamental rights of citizens can be affected, if communal disharmony arises between two communities, as the right to freedom of worship is one of the paramount rights of an individual.

Brief facts of the case

Background

V.Kalathur is a village that comprises two communities – Hindus and Muslims. Muslims reside on the eastern part of the village, whereas on the western side of the village, Hindus are residing. From the year 1951 onwards the dispute between the two religious groups regarding the usage of 96 per cent of Government Poramboke land arose between the two communities. 

Muslims had been desiring the use of the land on the basis that it has to be used as a commonplace whereas the Hindus were claiming long use of Poramboke land and had objected to the idea of common usage. Disputes had also taken place between the two religious groups with regard to the said site in pursuant to which many cases have been filed against both the communities.

Filing of petition

The petitioner, belonging to the Hindu community had approached the authorities for seeking permission to perform Oorani Pongal Vizha which was for the duration of 3 days and was granted permission imposing certain conditions by an order dated 23.09.2018 including conditions with regard to the conduct of procession.

On the basis of the promises given by both communities, the learned Single Judge held the following:

“1. There will be a celebration of the village festival for three days.

 2. The first procession of the first day would be taken only through the main roads and the procession would come to halt at the temple.

3. The second procession of the first day shall be taken from 10 P.M. to 2 A.M. via Periyakadai Veedhi, Pallivasal Street and Agraharam Street and would return on the same route to halt at Mariamman Koil.

4. Similarly, on the second day the first procession would be taken only through the main roads and the procession would come to halt at the temple.

5. The second procession of the second day would be taken from 10 P.M. to 2 A.M. via Periyakadai Veedhi, Pallivasal Street and Agraharam Street and return on the same route to halt at Mariamman Koil.

6. Since there was an objection by the Muslim community people about the sprinkling of turmeric water, based on the undertaking affidavit dated 11.10.2018 filed by the petitioner, it was directed that the Hindus shall not sprinkle turmeric water on the third day and they would restrict their celebrations and rituals on the third day.

7. Police protection was also directed to be given.”[4]

Appeal filed in the High Court of Madras

Indignant with the order of the learned single judge, these appeals were filed before the High Court of Madras. 

The contentions of the counsel appearing for the Appellant were :
1. For having a procession on the roads or streets meant for common passage, there cannot be any restriction.

2. The certainty that a particular section of people or group own properties on a road or street is not enough to prohibit the celebration of any other religious procession.

3. The power to regulate and not to prohibit exists with the police and revenue authorities and nothing else.

4.There is no issue with the permission granted for the first day by the learned single judge. The petitioner is only aggrieved by the restricted permission granted for the first procession on the second day through the main roads.

5. The petitioner wanted the first procession on the second day to go in the same route as that of the second procession of the first day as well as the second day viz., via Periyakadai Veedhi, Pallivasal Street and Agraharam Street and return on the same route to halt at Mariamman Koil and it cannot be restricted to main roads alone.

6. The third day function has no issues since the petitioner has agreed that Hindus shall not sprinkle turmeric water on the third day and the celebrations and rituals would be restricted. [5]

Hence it was argued on behalf of the petitioner that, procession cannot be prohibited to pass through the roads, as well as, the petitioner had seek permission for first procession of the second day of the temple festival to pass through all streets for which permission has been already granted for the second procession of the first day as well as the second day.

The averments made by the respondent’s counsel were the following:

  1. Erroneous permission to conduct two processions on the first two days was granted by the learned single judge in spite of objections raised by the third respondent as they had only agreed for conduct of two processions in a single day and had also objected to the conduct of procession after 9:00pm. 
  2. Some of the areas viz., Periakadai Veedhi, Post Office Street, Pallivasal Street are occupied only by the Muslim people and not even a single Hindu family resides in those areas and hence there is no reason to insist upon taking out the procession in those Muslim areas.
  3. The intention of petitioner is to go against law and order in the Muslim dominated areas by conducting the processions. 
  4. Earlier in 2016 and 2017 only two processions were permitted on a single day with police protection through the Muslim area. 
  5. The permission granted by the learned single judge has to be set aside and only two processions in a single day should be allowed. [6]

The records produced before the Court revealed that the major community residing in the village were Hindus and Muslims and that there was no problem till the year 2011 for conduct of festivals in the four major temples viz., 

(I) Arulmighu Lakshminarayana Perumal Temple 

(II) Arulmighu Selliamman Temple 

(III) Arulmighu Rayappa Temple 

(IV) Arulmighu Mariamman Temple 

The counter affidavit filed by the third respondent in the case viz., Deputy Superintendent of Police revealed that the three days festivals of the aforesaid temples were peacefully conducted till the year 2011 and only from the year 2012 onwards the Muslims started objecting to some of the Hindu festivals terming them as Sins. Even though Muslims objected to the conducting of the temple festival and procession, the petitioner approached the police authorities seeking protection for conducting the temple festival and procession.

By an order dated 20.08.2012, the police authorities had granted permission with certain restrictions, and by this order, the first day of Oorani Pongal and Mavilakku Pujai were allowed to be conducted on the same day. The Deity’s procession along with folk dance was allowed after 10:00 pm onwards. For the second day, the Mariamman deity, Milk pot and Fire pot along with music was permitted and the deity’s procession along with the folk dance was allowed after 10:00 pm onwards. Similarly, for the third day the sprinkling of turmeric water was allowed to be conducted in the morning time subject to certain conditions.

Aggrieved by this, a series of writ petitions was filed by one Nattar Basha seeking writ of mandamus by directing the respondents not to permit any procession on 30.08.2012 for the purpose of avoiding communal disharmony. The Court vide its order dated 15.10.2015 disposed of the writ petition and directed the police authorities to take appropriate actions to avoid any law and order situation during the procession to be held between 23.10.2015 to 25.10.2015.

Issues involved in the case

“People can be religious; Men may be communal; Can roads be communal?” was the issue or the question which was involved in the said appeal.

Laws involved in the case    

The rules applied in the present case were:

1. Section 180-A of the Tamil Nadu District Municipalities Act 1920[2]

“All streets vested in or to be vested in or maintained by a Municipal Council shall be open to persons of whatever caste or creed.”

2. Article 25 of Constitution of India[3], 1950

“Freedom of conscience and free profession, practice and propagation of religion.

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law— (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”

new legal draft

Judgment by the Court

After considering all the facts and circumstances involved in the case, and after hearing both sides, the Hon’ble High Court of Madras comprising the bench of Justice N.Kirubakaran and Justice P.Velmurugan, held that any procession including religious procession is not allowed to be prohibited simply on the ground that another religious group is residing or doing business in the area.

The Court also considered that, there must not be any kind of order which would prohibit religious festivals and temple’s processions through all the roads of the village/ town when the same is being conducted for years together.

As far as the law and order problem is concerned, the Court at para 32, has opined that:

“32. If there is going to be any law and order problem, the police authorities have to intervene and prevent any untoward incidents and give appropriate police protection. Therefore, the case of the petitioner has to be accepted and there shall be a direction to the authorities to permit the Hindus to conduct two processions on the first and second day of the village temple festivals through all the streets and roads which have been conducted till 2015. As far as the procession on the third day of temple festival is concerned, the petitioner himself accepted that Hindus would not conduct the procession in which the turmeric water would be sprinkled.”[7]

The Court at para 33 has also viewed that:

“33. The above said facts of the case would reveal that all along there had been religious tolerance and the religious festivals were conducted very smoothly and religious procession were conducted without any problem through all the streets and roads of the village. If religious intolerance is going to be allowed, it is not good for a secular country. Intolerance in any form by any religious group has to be curtailed and prohibited. In this case, intolerance of a particular religious group is exhibited by objecting for the festivals which have been conducted for decades together and the procession through the streets and roads of the village are sought to be prohibited stating that the area is dominated by Muslims and therefore, there cannot be any Hindu festival or procession through the locality. India is a secular country and merely because one religious group is living in majority in a particular area, it cannot be a reason for not allowing other religious festivals or processions through that area. If the contention of the private respondent is to be accepted then it would create a situation in which minority people cannot conduct any festival or procession in most of the areas in India. If resistance is being exhibited by one religious group and it is reciprocated by the other religious groups, there would be chaos, riots, religious fights causing loss of lives and destruction of properties. Consequently, the secular character of our country will be destroyed or damaged.”[8]

Analysis

The judgment of the Hon’ble High Court of Madras has to be accepted in its entirety because what the judge has stated was based upon secular ideals. The Constitution of India at Article 25 has given the citizens of India, the right to practice, profess any religion. Article 25 states that all persons are equally entitled to practice, profess and propagate any religion. This secular ideology enshrined in our Constitution must be adhered to in its entirety in order to avoid communal disharmony.

The High Court of Madras was right in stating that, India is a secular country and merely because one religious group is living in the majority in a particular area, it cannot be a reason for not allowing other religious festivals or processions to pass through that area.  It is also germane to point out that Section 180-A of the Tamil Nadu District Municipalities Act 1920, has allowed all the streets shall be open to all the persons of any caste or creed and hence, if any such claim that, one community is not allowed to practise their religious activities in a particular road or street, it will hinder the fundamental right of practice and propagating religion of their choice.

The High Court of Madras rightly stated that people can be religious, men may be communal, but roads and streets are secular. The Court was right in mentioning that, if the respondent’s contentions are accepted then there would be a situation in which minority people will not be allowed to conduct any festival or procession in most of the areas in India. If such resistance is being shown by one religious group which in turn is reciprocated by the other religious groups, then there would be a chaotic situation, and riots, as well as religious fights, will occur, that will only result in causing loss of lives and damage of properties. There would be a crisis in the country that would disturb the law and order situation which would result in communal disharmony. Hence, such activities would disturb the religious and secular character of the nation.

Conclusion

It is relevant here to mention that this verdict would set the precedent that a country with a variety in culture and diversity can not afford such religious and communal clashes between the different religious communities. The ideals of secularism should not be disturbed, otherwise, a violation of fundamental rights will happen, which will not only hamper the growth of the nation but will also promote hatred among the different religious communities. This will lead to a humanitarian crisis, where it would become difficult to promote brotherhood and unity in diversity.

References

1.     Mad HC| People can be religious; Men may be communal, but roads and streets are secular; Religious procession cannot be prohibited in an area inhabited by a different religious group: available at: https://www.scconline.com/blog/post/2021/05/10/mad-hc-people-can-be-religious-men-may-be-communal-but-roads-and-streets-are-secular-religious-procession-cannot-be-prohibited-in-an-area-inhabited-by-a-different-religious-group/

2.     Section 180-A, The Tamil Nadu District Municipalities Act, 1920, accessible at, https://www.tn.gov.in/dtp/pdfs/TN_District_Municipalities_Act_1920.pdf

3.     Article 25, The Constitution of India, 1950: accessible at, https://legislative.gov.in/sites/default/files/COI.pdf

4.     Ramasamy Udayar v. District Collector and Others, 2021 SCC OnLine Mad 1779: (2021) 4 Mad LJ 395


[1] Mad HC| People can be religious; Men may be communal; but roads and streets are secular; Religious procession cannot be prohibited in an area inhabited by a different religious group: available at: https://www.scconline.com/blog/post/2021/05/10/mad-hc-people-can-be-religious-men-may-be-communal-but-roads-and-streets-are-secular-religious-procession-cannot-be-prohibited-in-an-area-inhabited-by-a-different-religious-group/

[2] Section 180-A, The Tamil Nadu District Municipalities Act, 1920, accessible at, https://www.tn.gov.in/dtp/pdfs/TN_District_Municipalities_Act_1920.pdf

[3] Article 25, The Constitution of India, 1950: accessible at, https://legislative.gov.in/sites/default/files/COI.pdf

[4] Ramasamy Udayar v. District Collector and Others, 2021 SCC OnLine Mad 1779: (2021) 4 Mad LJ 395 at para 6.

[5] Supra note 4, refer para 8 of the impugned judgment.

[6] Supra note 4, refer para 11 of the impugned judgment.

[7] Supra note 4, see also, para 32 of the judgment.

[8] Supra not 4, refer para 33 of the judgment. 


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