New Delhi (ILNS): The Justice L. Nageswara Rao led bench of the Supreme Court today heard the plea by the Nanded Sikh Gurudwara Sachkhand Shri Hazur Abchalnagar Sahib Board, seeking permission to conduct the Dusshera, Takht Isnan, Deepmala and Gurta Gaddi procession, promising the involvement of a maximum of 50 people, but the bench was not satisfied.
The court directed the Maharashtra state authorities to hear the Gurudwara plea by tomorrow. The bench also asked the Gurudwara authorities to approach the Secretary Disaster management department. The bench said that the decision (to allow or not allow the processions) will have to be taken by Maharashtra government on the basis of the current ground situation.
The analogy of allowing the Puri Jagannath Rath Yatra did not cut ice, because the Odisha government had declared a curfew on that day.
Advocate Praveen Chaturvedi, arguing for the petitioners, said that the Center has practically issued guidelines. The state has also not raised objection to any limited gatherings. He pointed out that permission had been granted to Jain temples to open for the public.
Then he cited the example of the 50-person limit allowed for marriages. “We are also not asking for public participation. There will be 50 persons, on a limited route,” he argued.
The bench reminded the counsel:
“Your contention that the state government is not opposing the procession is wrong. 40/50 people in the procession is okay, but who will control (the crowd) if there is a procession on the road? In the Puri case the state government imposed curfew. There is a health risk.”
Adv Praveen said: “We have reduced the procession route to 1.5 km. We will hold it in the evening so few people may come.”
The bench reiterated that the state is saying there’s a health risk, especially with the number of people affected in Nanded. “You’re saying there will only be 40-50 people.
In Puri also there was a restriction, but many people turned up. Processions are not being allowed now. You can have only 40-50 people but what about the people on the road? What if people come?”
The counsel for the Gurudwara said: “We are asking people in the community to not come. We will have a truck on which the Granth Sahib will be kept. We will also telecast the proceedings.”
Solicitor General Tushar Mehta said:
“We have issued guidelines. We have been unlocking the country and the process started from May 30. The MHA, vide a August 29 order issued unlock 4 guidelines – allowed religious/political/social functions from September 21. The September 30 guidelines allowed gatherings of up to 100 persons. Also allowed are gatherings of more than 100 persons outside containment zones subject to conditions.”
The SG said: “When the petitioner says we will not be gathering more than 50 persons, then it would not cross the 200 mark. The petitioner could consider doing the procession early in the morning, so only those who are participating in the religious function will join. Otherwise other people will be on the road.”
The bench asked: “Would you agree that 100 persons is the guideline, but states can take a decision according to the conditions on the ground? We want to suggest one thing. The procession is 1.5 km; they could consider holding it between 7 and 9 am so that only the persons participating in the ritual are there and passersby are not involved.
“If you see the Maharashtra affidavit, they have said so many festivals which involved processions have been banned. They have said when Ganesh Chaturthi etc were banned, if we allow this, other festivals will also ask for permission.
“Now we are asking you that would giving permission for one festival give way to others?”
The SG said: “This is not a festival celebrated across Maharashtra. It’s restricted only to Nanded. And it is restricted to a community with small numbers.
The bench asked how many people attended last year. The counsel for the Gurudwara replied that last year was an open function and around 7,000 to 8,000 people attended.
The counsel for the Maharashtra government said that the state is genuinely concerned about health. Public health is a state subject. Despite what the Centre says that functions can go on, public health is something state has to consider. It’s all very well to say that there will be only 50 people, their own documents say that Dussehra festival is on October 22 and there will be a heavy congregation of people.”
The SG said:
“I checked the significance of Nanded. Guru Govind Singh gave up his Guru-ship at Nanded, and was cremated where the Gurudwara is built. It is a very important shrine. But its importance adds to the problem.”
The counsel for the Maharashtra government said: “The letter sent by the Gurudwara on September 28 said that lakhs of people will come. People from all over the country gather. Emotions are charged. It may not be possible to maintain the (Covid) SOPs of the government.
Justice Hemant Gupta asked: “But they say they won’t have more than 50 people.”
The counsel for the Maharashtra government said: “Our experience has shown that this kind of 50-60 people congregations are not possible. More people turn up.”
The SG said: “Would it be possible for you to impose curfew like in the Jagannath Puri case? Have a curfew for an hour or two and ask people not to come out?”
Justice Gupta said: “I come from Punjab and the Gurudwaras there have the practice of prabhat pheri. Can’t they hold the procession at 4-5 am?”
The Maharashtra government counsel said:
“Ganpati is the most important festival in Maharashtra. The same request was made that only 4-5 people will be allowed in every pandal. But we did not permit any procession. Especially when the count is now going lower, we are not in a position to permit any processions. Look at the Amarnath case order of the Supreme Court. It said clearly that it is for the state government to consider.”
The bench said: “The Center’s guidelines of September 2020 have allowed more relaxation.”
The Maharashtra government counsel said: “As far as the state rules are concerned there is a September 30 order that clearly states that congregations are strictly prohibited. Center guidelines are guidelines. It’s for the states to consider situation. Maharashtra has borne the brunt of Covid cases. Look at the list of festivals in which we did not permit gatherings. Ganpati, Rakshabandhan, Muharram, Ashadh purnima.
Kindly look at the danger of allowing gatherings. 40 persons of a family came together in Kalyan to celebrate in one house. One of them was Covid positive, 38 members of the family became positive after this.
“Look at the experience of the state. Especially when the gatherings are avoidable. Law enforcement agencies have expressed that they will not be able to control the crowd in a charged atmosphere like this. The state has taken a considered reasonable stand.”
The Supreme Court asked the Maharashtra government whether Nanded Gurudwara can be permitted to hold Dussehra festival and Guru Granth Sahib procession at 5 am with limited gathering.
The top court bench asked the petitioner to go to the high court, and also said that the state disaster management authority should take decision depending on the current Covid scenario.
The Supreme Court directed the state authorities to hear the Gurudwara plea by tomorrow. The bench asked the Gurudwara authorities to approach the Secretary Disaster management department.
The bench also said that the Maharashtra government should inform the court that the Gurudwara has also asked permission to hold five processions after October 22 and in November.
The bench said the decision will have to be taken by the Maharashtra govt on basis of ground situation. The bench added that the government should also keep in mind the parameters of judicial review. Safeguards to be observed are under the administrative authorities.
The court ruled that the assessment of the situation will be based on ground reality. It’s within administrative authority of the state. Court’s jurisdiction comes in if the decision making is done in an arbitrary manner. But here the decision making is based on ground reality.
The Maharashtra lawyer read out the Jagannath Puri order. The court had changed the order after the state government said it was possible to hold the festival.
The bench said “The huge function in Odisha was allowed during lockdown. Why can’t your state impose curfew or barricade and control during the unlock? This is a much smaller gathering.”
The Maharashtra government counsel said it’s not about curfew or barricades. Hundreds of people will come from across the country. Crowd control will not be possible.
The bench reiterated: “Can’t you have the procession at 5 am?”
The Maharashtra government counsel said: “Ask them to file a representation to the state disaster management authority.”
The bench said: “This is something where the court cannot interfere. When the state is saying it is difficult. Unlock guidelines are being issued. Now even the metro is being opened.”
In its order the Supreme Court noted that the Maharashtra government has argued that even Article 25 gives freedom to profess and propagate religion subject to public order and safety. Public order is a state subject. State government has concerns regarding public health. Ban has been imposed on all religious functions in congregations.