Calcutta HC Lifts Bengal Government’s Arbitrary And Unilateral Ban On Durga Immersion on Muharram


To begin with, it gives me immense happiness to note that a Bench of Calcutta High Court comprising of Acting Chief Justice Rakesh Tiwari and Justice Harish Tandon in Subhankar Chakraborty & Another v The State of West Bengal & Others (Writ Petition No. 24135 (W) of 2017) and two other petitions has in a landmark step lifted all the restrictions on Durga Puja immersion imposed by the West Bengal Government, allowing it till12 am on all days including the tenth day of the Islamic month of Muharram. Durga Puja is India’s national pride and it would be the biggest crime to restrict the Immersion just because of Muharram. I have seen people of all religions worshipping Mata Durga with equal religious fervor.

                                 On a personal note, let me be honest to admit that my belief in Mata Durga and Lord Hanuman became unflinching only and only when my best friend Sageer Khan used to accompany me to a particular temple of Lord Hanuman and Mata Durga in Sagar which is in Madhya Pradesh way back in 1993-94 and at that particular point of time my faith in God was completely shattered. Sageer Khan took a solemn vow from me that I would always worship till my last breath Lord Shiva whom I worshipped till then. I promised but my devotion for Mata Durga and Lord Hanuman grew by leaps and bounds because for 2 years from 1993-95, he always accompanied me to that particular temple and I was shell shocked to see his dedication when he bowed his head in front of Mata Durga and Lord Hanuman. Since then I too started worshipping them with full dedication just like I worshipped Lord Shiva earlier!

                                  Coming back to the main subject, let me say this not as a Hindu but as an impartial observer that what Mamata has done can never be justified on any grounds! Mata Durga belongs to all as holy mother and not just to Hindus alone and this I say from what I experienced personally in my own life which I have just narrated above. I hold Mata Durga in highest esteem because of Sageer Khan and not just because I am a Hindu! Questioning the West Bengal government’s curbs on Durga idol immersion, the Calcutta High Court onSeptember 20 said that, “The State cannot hinder a citizen’s right to practice religion on the basis of a mere assumption of law and order disruption and must provide sound reasons for doing so.”

                                     Be it noted, Acting Chief Justice Rakesh Tiwari very rightly said that, “Let them (Hindus and Muslims) live in harmony, do not create a line between them”. Why can’t Hindus and Muslims worship together and peacefully? Why is politics played of the worst kind just for the sake of votebank which only serves to disintegrate people following different religions and jeopardize our national interests in the longer run?

                                     Truth be told, Acting Chief Justice Rakesh Tiwari rightly asked the government to provide a “concrete ground” for its decision to stop the immersion of Durga idols after 10 pm on September 30 (Vijaya Dashami day) and on October 1 on account of Muharram. He also very rightly said that, “People have the right to practice their religious activities, whichever community they may be of, and the State cannot put restrictions, unless it has a concrete ground to believe that two communities cannot live together.” Every Judge in India should follow what Justice Rakesh Tiwari has said so elegantly.

                                    Let me now jog my readers memory a little back. It may be recalled that few years back, Mamata Banerjee Government was slammed and castigated by the Calcutta High Court itself yet again for indulging in minority appeasement of the worst kind by granting allowances to Imams and Muezzins, ruling it to be unconstitutional and against the public interest. Now again we see Mamata government indulging in yet another worst appeasement by restraining Hindus from immersing Durga idols on ‘Ashura’, the tenth day of Muharram which is a day when Shia Muslims mourn death of Imam Hussein and his family! The Calcutta High Court rightly asked police to designate separate routes for Durga Puja immersions and Tazia processions on the occasion of Muharram in the city and ensure adequate security for both.

                                     While craving for the exclusive indulgence of my esteemed readers, let me inform them that the Calcutta High Court stated explicitly that the State cannot hinder a citizen’s right to practice religion assuming that there will be law and order problems and asked the Government to provide ‘concrete grounds’ for its decision to restrict the immersion. There can be no denying this. The Court also rightly held that, “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”.

                                  For my esteemed readers exclusive indulgence, let me also inform them that the Court further observed that, “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 (as per Hindu calendar), shall ensure that adequate protections are provided to maintain the public order or the peace and harmony”. The Court further directed 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. Very rightly so!

                              As it turned out, after the order was passed, the State sought a stay on its operation, which was denied. The West Bengal State Government had banned the immersion of Durga Mata idols beyond 10 pm on September 30 which was the last day of the Navratras festival and October 1 on the pretext of preventing a clash of processions and to maintain law and order. Mamata Banerjee who is Chief Minister of West Bengal was quoted in media as saying that, “Someone can slit my throat, but no one can tell me what to do. I will do what I can to keep peace.”

                                         Let it be said upfront and direct: Mamata should know fully well that Calcutta High Court is the second biggest court in the country and not just “someone” who can’t direct her what to do or what not to do. She must comply with the Court’s order until and unless the orders are overruled by Supreme Court which is the highest court in the country itself and not on any other flimsy grounds whatsoever! She has got just no other feasible option before her!

                                           Truly speaking, the Calcutta High Court while placing an interim stay on the government’s decision said that, “You are exercising extreme power without basis…just because you are the state, can you pass an arbitrary order?” Certainly not. State Government has to function within parameters and it cannot exercise powers whimsically and extremely!

                                      Simply put, Priyanka Tibrewal who is advocate for the petitioners said that, “The court ruled that the routes of immersion and Moharram tazias have to be separately demarcated. The separate routes have to be widely publicised.” Calcutta High Court asked authorities to file an affidavit within three weeks after the Puja holidays and the petitioners to submit their reply within another two weeks. The next hearing is scheduled to be held five weeks after the vacation.   

                                      As it turned out, the Calcutta High Court while placing an interim stay on the government’s decision, said, “You are exercising extreme power without basis…just because you are the state, can you pass an arbitrary order?” The Bench also directed the state government to issue advertisements providing information about the routes and ensure communal harmony. While declining a plea from the state government for a stay on the order, the Calcutta High Court asked authorities to file an affidavit on the pleas within three weeksafter the Puja holidays and the petitioners to submit their reply within another two weeks.

                                Welcoming the Calcutta High Court’s landmark order, BJP State President Dilip Ghosh said that, “The court has vindicated our stand. The Chief Minister created trouble unnecessarily by imposing such restrictions and has been playing divisive politics. Today’s verdict is a slap on the face of the state government.” Mamata must see the writing on the wall as earlier also she had been ticked off by Calcutta High Court few years back. It is high time and good sense must now at least prevail on her! Let’s hope so!

                                         Instead of treating it as a slap on her face, she should do some soul searching. She must now realize fully well that she has been trying to win over Muslims at the cost of Hindus and this under no circumstances can ever be justified! The earlier she does this, the better it shall be in her own interest as well as nation’s interest!

                                        To put it mildly, there is no harm in admitting the error and in correcting it at the earliest instead of taking it personally because Calcutta High Court does not contest any elections against her and so she cannot accord any political motives to it which incidentally is the oldest High Court in India! The Calcutta High Court in its landmark order very rightly said that, “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 the performance of ceremony in the absence of any materials sufficient enough for the formation of such opinion/decision”.

                                      It is noteworthy that while observing that the “maintenance of law and order is within the domain of the State,” the Division Bench of Calcutta High Court pointed out that the decision to prevent any untoward incident should be founded on the “cogent and convincing material and not merely on one’s perception.” The Court order cited that when asked about application seeking licence from the Muslim community for procession (Tazia) to observe mourning on the eve of Muharram or on a Muharram day, the State produced only one application “which does not reveal any discord or disharmony because of the conflict between these two religious communities in the State of West Bengal.”

                                  All said and done, it is a landmark order which must be emulated by all courts in India including the Supreme Court. It is a must read order! I have just no doubt on this! No preferential rights should be accorded to one particular religion alone. This is the real essence of our democratic polity which has to be protected under all circumstances. No politics should be done on it by any party because Calcutta High Court or for that matter any other court in any part of India stands above all petty politics and decides cases only and only on merit and not on political considerations under any circumstances whatsoever! We should just not nurture any doubt on this. It is high time and now political parties must also learn to refrain from taking political mileage from any court’s order and should abide by it with all humility!




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