Considering the dangerous, dreaded and deadly corona virus impact especially in Maharashtra and in Bombay in particular, the Bombay High Court most recently on August 28, 2020 in a noteworthy case titled All India Idara-E-Tahafuz-E-Hussainiyat Vs The State of Maharashtra & Ors. in AD-HOC No. WP-LD-VC-350 of 2020 has in a significant order allowed only five persons with a videographer to carry Tazia, replica of the tomb of Husain who was the martyred grandson of Prophet Muhammad in processions during Muharram on August 30 from 4.30 pm to 5.30 pm from Zanabia Bhendi Bazar to the Shia Cemetry at Mazgaon. The Bombay High Court in this notable case also clarified that it will be the only Tazia to be carried in the entire State of Maharashtra! This restriction has been made primarily to ensure that this Covid-19 pandemic does not spread rapidly due to contact among many people! Very rightly so!
To start with, the ball is set rolling by a two Judge Bench of Justice SJ Kathawalla and Justice Madhav J Jamdar of the Bombay High Court in para 1 wherein it is observed that, “The Petitioner All India Idara-E-Tahafuz-E-Hussainiyat through its General Secretary Shri Habib Nasir has stated in the above Petition that they are one of the oldest organization of the Shia Community.”
While stating the purpose of the petition, it is then pointed out in para 2 that, “By the above Writ Petition, the Petitioner is seeking appropriate writ, order or direction to allow the rituals of Muharram to be performed during the present pandemic from 27th August, 2020 till 30th August, 2020 daily for two hours.”
To put things in perspective, it is then enunciated in para 3 that, “In the above Petition, this Court passed an order in the present matter on 27th August, 2020 whereby the Principal Secretary, Home Department and Secretary, Disaster Management Department were directed to hear the President and the General Secretary of the Petitioner Organization at 5.00 p.m. yesterday itself. Both the aforesaid Secretaries were directed to submit their decision with reasons to this Court by 11.00 a.m. today.”
As a corollary, it is then stated in para 4 that, “Accordingly, the parties have been heard by both the aforesaid Secretaries and they have taken a decision with detailed reasons today i.e. on 28th August, 2020. The same has been submitted with this Court at 11.00 a.m. as directed. A copy thereof, has also been served on the learned Advocates for the Petitioner.”
To be sure, it is then stated in para 5 that, “We have perused the aforesaid decision dated 28th August, 2020 and we have heard the learned Senior Advocate for the Petitioner, as also the learned Advocate General for the State of Maharashtra, who was requested to appear in the matter for the State, along with the learned Government Pleader and Additional Government Pleader.”
For the sake of clarification, it is then made clear in para 6 that, “Both the parties have agreed that in view of the limited order, that is being passed hereunder, no reasons in support of this Order be recorded, especially since this Order is being passed as and by way of as exception, which is not intended to be used as a Precedent by other persons, to seek permissions, to hold any festival/festivities, which would involve by their very nature congregation of people.”
Be it noted, it is then stated in para 7 that, “On behalf of the Petitioner, the General Secretary Shri Habib Nasir, has attended the hearing and we have heard him personally via Video Conferencing, though limited to the extent mentioned hereunder.”
Most significantly, the Bench then makes it known in para 8 that, “The said General Secretary, Mr. Habib Nasir has given following undertakings to this Court, which are hereby accepted:
i. In a representative capacity for and on behalf of the entire Shia community residing in the State, there will be only one Taziya, which will be carried from Zainabia (Bhendi Bazar) Mumbai to Byculla Mazgaon, Shia Cemetry, situated at Mumbai, in the entire State. No other Taziya other than the one mentioned hereinabove, will be carried anywhere in the State.
ii. The aforesaid one Taziya will be carried/transported from Zainabia (Bhendi Bazar) Mumbai to Byculla Mazgaon, Shia Cemetry, situated at Mumbai, via J.J. Hospital, Prince Ali Khan Hospital, Sales Tax Office circle in a trust i.e. transport vehicle large enough to accommodate it. These will not be any procession as such, for carrying the said one Taziya, in the aforesaid manner.
iii. In no case whatsoever, any congregation of people at any point from the beginning till the end of the said journey of aforesaid one Taziya will be allowed.
iv. The aforesaid one Taziya will be carried along strictly aforesaid one route.
v. The aforesaid one Taziya will be carried along the aforesaid route on Sunday 30th August, 2020 from 4:30 p.m. to 5.30 p.m.
vi. Not more than five persons will carry the aforesaid one Taziya on a truck, as aforesaid along with one videographer. However, after taking the aforesaid one Taziya down near the graveyard, it will be carried on foot, for a distance of not more than hundred meter. The names, ages and addressed of these five persons will be submitted with the office of the Commissioner of Police, Mumbai by 5.00 p.m., on 29th August, 2020.
vii. The Petitioner and all its members will strictly abide by the rest of the guidelines issued by the Home Department, State of Maharashtra, regarding Muharram-2020, dated 19th August, 2020, a copy of which is annexed to the above Writ Petition as Exhibit-A.”
In addition to what has been stated above, it is then also added further in para 9 that, “The State Government shall, if not already imposed, impose a restriction over gathering of people at the appropriate places, by issuing appropriate orders, including the point where aforesaid one Taziya is to start its journey, up to and including the graveyard, where its aforesaid journey will and, by passing appropriate orders under Section 144 of the Code of Criminal Procedure, 1973. The State shall also provide an escort as also a pilot car for the aforesaid truck, carrying aforesaid one Taziya and will take appropriate measures to keep the traffic away and the road clear along the aforesaid route, which is hereinabove prescribed as a route for carrying aforesaid one Taziya.”
Needless to say, it is then observed in para 10 that, “The Writ Petition is accordingly disposed of.”
Finally, this notable judgment is concluded in para 11 wherein it is stated that, “This order will be digitally signed by the Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.”
To sum up, we thus see that when corona pandemic has hit worst Bombay and the State of Maharashtra in particular, the Bombay High Court Bench of Justice SJ Kathawalla and Justice Madhav J Jamdar of the Bombay High Court has permitted one Taziya to be carried out in the entire State of Maharashtra and Muharram procession of only 5 persons with one videographer! This is certainly a right step in the right direction also! The religious sentiments of Shia Muslims have been taken into account but simultaneously many terms and conditions have also been imposed which the petitioner “All India Idara-E-Tahafuz-E-Hussainiyat” through its General Secretary “Shri Habib Nasir” has accepted also as has already been discussed also hereinabove! Very rightly so!