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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 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]

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) 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

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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 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

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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 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

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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, 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

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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 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. 73