JUDGMENT M. Katju and Bhanwar Singh, JJ.
1. Heard Sri. M. S. Haq and Abrar Ahmad, learned counsel for the petitioner and Sri P. M. N. Singh, learned Additional Advocate General for the respondents.
2. The petitioner has prayed for a mandamus directing the respondents to protect the Tazia procession during Moharram and for a mandamus directing respondents to comply with the direction of the respondent No. 2 copy of which is Annexure-3 to the petition and to implement the report of the respondent No. 3 at the day of burial of Tazia from village Mulnapur to village Ghatupur. Tehsil Handia, district Allahabad.
3. It appears that there is an Imambara situated at village Mulnapur, Tehsil Handia, district Allahabad and the people of the said village used to perform the Fatiha on the 10th of Moharram and take out Tazia procession from the said place to the place of burial at Karbala situated at Ghatupur from times immemorial.
4. It is alleged in paragraph 3 of the petition that some anti-social elements of that village stopped the way of the said Tazia by occupying and constructing unauthorisedly on the path whereupon the villagers made several complaints but no action was taken. Thereafter the petitioner who is the Taziadar moved an application before the S.D.M., Handia on 14.6.1997 requesting that the guilty may be punished and the said Tazia may be allowed to be burled. A true copy of the letter is Annexure-1 to the petition. On this application, the S.D.M. gave his report on 14.6.1997 and accepted the fact that the Tazia procession was being taken out from time immemorial and he proposed a new way for the Tazia. A true copy of the report of the S.D.M. is Annexure-2 to the petition. In paragraph 5 of the petition. It is alleged that the villagers are being deprived of their fundamental rights and the matter was reported to the Inspector General of Police, Allahabad Zone and considering the facts and circumstances, of the case, the Inspector General of Police issued direction to respondent No. 4. S.S.P., Allahabad on 3.5.1998. A true copy of the same is Annexure-3 to the petition. In paragraph 6 of the petition, it is alleged that several representations were moved by the villagers but in vain and aggrieved, the petitioner moved an application dated 8.3.1999 before the respondent No. 3 copy of which was sent to respondent No. 1 requesting that the report of the S.D.M., Handia may be complied with but the respondent did not pay any heed in the matter and the way of the Tazia was stopped. The petitioner has stated that he is prepared to accept the new route suggested by the S.D.M. as contained in Annexure-2.
5. A short counter-affidavit has been filed in which it has been stated in paragraph 3 that a wrong impression was sought to be created that the Tazia was obstructed by some person. It is alleged in the counter-affidavit that there was no regular highway but it was an open field through which the Tazia used to pass over prior to 1997. In paragraph 4 of the counter-affidavit. It is stated that the property belongs to one Mukhtar Ahmad which was his personal Bhumidhari land and he sold it to different persons who have constructed their pucca houses on the same and at present, the way is not available. In paragraph 5 of the counter-affidavit. It is stated that in the meeting in which the Taziadar, S. P. Rural Area and A.D.M. were present, a route was proposed for carrying the Tazia copy of which is contained in Annexure-CA. 3. In paragraph 6 of the counter-affidavit, it is alleged that the way demanded by the petitioner is highly disputed and it will involve cutting of green trees and unnecessarily harming the interest of the villagers. In paragraph 7 of the counter-affidavit, it is alleged that the procession of Tazia is part of religion but insistence of carrying out the same by demolishing the existing houses of private individuals and cutting of green trees is not a part and parcel of religious practice. In paragraph 8, it is stated that the way demanded by the petitioner will involve demolition of the wall of one Raj Bahadur who has not been impleaded as a party.
6. We have carefully considered the submissions of learned counsels.
7. This is a free, democratic, and secular country. Article 25(1) of the Constitution states "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, practice and propagate religion".
8. Article 15(1) of the Constitution states "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth of any of them".
9. India is the land of tremendous diversity, having a large number of religions, castes, languages, ethnic groups, etc. The only path which will keep the country on the road to progress and maintain the integrity of the nation is the path of secularism and equal respect for all religions. It is the path shown by the great Emperors Ashok and Akbar who gave equal respect to all religions.
10. The greatness of our Founding Fathers can be realised from the fact that at a time when our sub-continent was engulfed in the flames of communal madness at the time of partition in 1947, the Founding Fathers insisted that India will remain a secular country. This was not an easy thing to do, for it is very difficult to retain a cool mind when passions are inflamed. There must have been tremendous pressure on the Founding Fathers to declare India as a Hindu State, especially since Pakistan had declared itself an Islamic State. The Founding Fathers were truly great people, for they resisted these pressures, and provided for a secular state in India under the Constitution.
11. Tazia is a part of Muslim religion and Muslims are fully entitled to take out Tazia procession. Hence, we direct that there should be no obstruction and the authorities will ensure law and order in peaceful taking out of Tazia.
12. However, we have repeatedly held that religion is a private affair and must be carried out peacefully without causing harm or harassment to anybody, and hence Tazia cannot be taken out through the private land of anybody. It can only be taken out peacefully on a public path and in a manner which does not cause inconvenience to anybody. The path of the Tazia has been recommended by the S.D.M., Handia and the map is Annexure-2 to the petition. The petitioner is agreeable to this path suggested by the S.D.M. Hence, we are of the opinion that the Tazia procession can be taken over on the aforesaid path as suggested by the S.D.M., Handia, Allahabad but we direct that no private property or trees should be damaged during the course of Tazia procession. The petitioner and the authorities Will also maintain law and order.
13. With these directions the petition is finally disposed of.