Calcutta HC allows allows Durga idol immersion on Muharram in Youth Bar Association’s PIL [Read order]

The Calcutta High Court today passed an interim order allowing immersion of Durga idols on the day of Muharram. The High Court also directed the police to designate routes for immersion and Tazia processions..The order to that effect was passed by a Bench of Acting Chief Justice Rakesh Tiwari and Justices Harish Tandon in a petition filed by Youth Bar Association of India..The petitioner association was represented by advocates Kuldeep Rai, Raj Dip Ray, Mousomee Shome, Ricky Ray, Somnath Adhikary, Debanjan Ghosh, Sunny Nandi and Sandip Ray..The decision to bar idol immersion on Muharram day was initially announced through Twitter by Chief Minister Mamata Banerjee. Pursuant to the same, an order was passed on September 9 and a clarificatory order was passed on September 13 by the State government..The petitioner association had challenged the same contending that it is violative of Article 14 of the Constitution and hurts the religious sentiments of the majority community. The petitioner had further submitted that Mamata Banerjee, as the Constitutional head of the State, is responsible for maintaining and discharging constitutional duties bestowed upon her..The Court in its order today proceeded to set out the significance of Durga Puja to the Hindus of Bengal and Muharram to Muslims..“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 teach religions in the country and incorporated Articles 25 and 26 in Part-III of the Constitution.”.The Court held that though the State can regulate religious processions or ceremonies, it does not have an absolute power to prohibit performance of a ceremony and that there is no reasonable basis for putting restriction on idol immersion..“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 unable to comprehend from the submissions advanced at the Bar, more particularly, from the State any reasonable basis for putting restriction on immersion of Durga Idol till 06.00 p.m. on September 30, 2017 and absolute prohibition on October 1, 2017. The maintenance of law and order is within the domain of the State and the decision to prevent and protect any untoward incident should be founded on the cogent and convincing material and not merely on one’s perception.”.It also held that the impugned decision of the State creates a distinction between the rights of the two religious communities and is not sound and healthy for a unified secular country..“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, therefore, directed that the State cannot prohibit the idol immersion but can earmark separate routes for the procession (Tazia) by the Muslim community and the procession for immersion of the Durga Idol on September 30, 2017 and on October 1, 2017..“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...This court hereby directs the Director General of West Bengal Police and Commissioners of all respective Commissionerates in the State to specify a separate route for immersion of Durga Idols and Tazias and shall ensure that such routes do not overlap each other..The aforesaid authorities shall make a wide publication through various media, the routes earmarked for immersion of the Durga Idols and Tazias. The immersion of idols shall be allowed till 12 midnight and shall ensure that any procession that reaches before the aforesaid time shall be permitted to immerse the idol. The aforesaid arrangement shall continue on all days commencing from September 30, 2017.”.Speaking to Bar & Bench, offices bearers of Youth Bar Association expressed their jubilance, terming it a triumph of Constitutional spirit..Read the order below.