IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 16/08/2005
Coram
THE HON'BLE MR. MARKANDEY KATJU, THE CHIEF JUSTICE
and
THE HON'BLE MR. JUSTICE A.KULASEKARAN
Writ Petition No.26004 of 2005
K. Rajangam
Balasamudram Village,
Palani Taluk,
Dindigul District. .. Petitioner
-Vs-
1. The Superintendent
of Police,
Dindigul District,
Dindigul.
2. The District Collector,
Dindigul District, Dindigul.
3. The Revenue Divisional Officer,
Palani.
4. The Inspector of Police,
Palani Taluk P.S.,
Palani.
5. Mohammed Gani
Balasamudram Village,
Palani Taluk, Dindigul District. .. Respondents
Writ Petition filed under Article 226 of the Constitution of
India praying for the issue of writ of mandamus directing the respondents 1 to
4 herein to avoid communal clash by enforcing funeral procession of Muslim
community only through Mandukal street at Balasamuthiram village, Palani
Taluk, Dindigul District as per agreement dated 12.4.19 98 reached between
Muslim and Devendrakula Vellalar communities.
!For petitioner : Mr. D. Jayakumar
For respondents: Mr. V.Raghupathy
1 to 4 Govt. Pleader
:ORDER
(Order of the Court was made by
The Honourable The Chief Justice)
This writ petition is a sequel to our decision in Mohd.Gani v. The
Superintendent of Police, Dindigul, 2005(3) L.W 289.
2. This writ petition has been filed for a writ of mandamus directing
the respondents 1 to 4 to avoid communal clashes by permitting funeral
processions of Muslim community only through Mandukal street at Balasamuthiram
village, Palani Taluk, Dindigul District as per agreement dated 12.4.1998
reached between Muslim and Devendrakula Vellalar communities.
3. We heard the learned counsel for the petitioner and perused the
record.
4. It is alleged in paragraph 2 of the petitioner’s affidavit that in
the village in question there are four thousand people belonging to
Devendrakula Vellalar Community whereas there are only one thousand Muslims in
the village. It is further alleged in paragraph 3 of the affidavit that in
the village, the Muslims traditionally use Devar East Street otherwise called
Mandukal Street to carry dead bodies to burial ground. However, it is alleged
that one Mohamed Gani the fifth respondent instigated the village Muslims to
use Kottai Kaliamman Koil Street where Karuppannasamy temple and Kaliamman
Kovil and the petitioner’s house are said to be situated. It is alleged that
an objection was raised and then an agreement was reached between the
Devendrakula Vellalar community people and the Muslim community people before
the Revenue Divisional Officer, Palani, the third respondent herein, on
12.4.1998 according to which the Muslim community people including the said
Mohamed Gani the fifth respondent agreed to use Mandukal street for funeral
procession and not to use Kottai Kaliamman Kovil Street running through the
petitioner’s colony.
5. Mohamed Gani filed Writ Petition No.5202 of 1998 and prayed for
police protection for funeral processions of Muslims according to the
agreement dated 25.1.1998 and it is alleged that he did not make any member of
the Devendrakula Vellalar community as a party in that writ petition. It is
alleged that even according to the agreement dated 25.1.1998 Muslims have to
use Mandukal street only and not Kottai Kaliamman Street.
6. Writ Petition No.5202 of 1998 was decided on 14.7.2005 by this
Court and that decision is reported in 2005(3)L.W. 289 Mohamed Gani vs. The
Superintendent of Police, Dindigul District, Dindigul and others.
7. It is alleged that Muslims want to carry dead bodies through
Kottai Kaliamman Street instead of the agreed route of Mandukal Street and
thereby there may be communal clashes.
8. This is a free, democratic and secular country as held by the
Division Bench of this Court in Mohamed Gani’s case (supra). India does not
belong to Hindus alone. It belongs equally to Muslims, Christians, Buddhists,
Jains, Parsis, Sikhs, Jews, etc. and all are equal before the law.
9. No doubt, one cannot carry dead bodies through private land but we
cannot see what objection can there be in carrying dead bodies through public
streets. After all people of all communities have to take dead bodies to the
cremation ground or burial place, and for this purpose they have to use the
public streets or roads.
10. In Mohamed Gani vs. The Superintendent of Police, Dindigul
District, Dindigul and others (supra) we have discussed this matter in great
detail and hence we are not repeating the observations made in that judgment.
As held by us in that judgment, the right to bury dead bodies in accordance
with one’s religious rites and customs is a part of the essential religious
rites of every religious community and hence it cannot be prohibited. Such
religious rites are part of Article 25 of the Constitution which provides for
religious freedom not only in the matter of beliefs but also in the matter of
religious rites. The relevant case law on the point has been referred to and
discussed in detail in Mohd.Gani’s case (supra)
11. In our opinion, even if there was an agreement between the Muslim
community and the Devendrakula Vellalar community that Muslims will not use
Kottai Kaliamman Kovil Street such an agreement will be in violation of the
constitutional guarantee under Article 25 of the
Constitution. It is well settled that there can be no waiver of fundamental
rights vide Olga Tellis v. Bombay Municipal Corporation, AIR 1 986 SC 180
12. In Olga Tellis’s case (supra), a Constitution Bench of the
Supreme Court observed (vide paragraph 28): –
” There can be no estoppel against the Constitution. The Constitution is not
only the paramount law of the land but, it is the source and sustenance of all
laws. Its provisions are conceived in public interest and are intended to
serve a public purpose. The doctrine of estoppel is based on the principle
that consistency in word and action imparts certainty and honesty to human
affairs. If a person makes a representation to another, on the faith of which
the latter acts to his prejudice, the former cannot resile from the
representation made by him. He must make it good. This principle can have no
application to representations made regarding the assertion or enforcement of
fundamental rights. For example, the concession made by a person that he does
not possess and would not exercise his right to free speech and expression or
the right to move freely throughout the territory of India cannot deprive him
of those constitutional rights, any more than a concession that a person has o
right of personal liberty can justify his detention contrary to the terms of
Article 22 of the Constitution. Fudamental rights are undoubtedly conferred
by the Constitution upon individuals which have to be asserted and enforced by
them, if those rights are violated. But the high purpose which the
Constitution seeks to achieve by conferment of fundamental rights is not only
to benefit individuals but to secure the larger interests of the community.
The Preamble of the Constitution says that India is a democratic Republic. It
is in order to fulfil the promise of the Preamble that fundamental rights are
conferred by the Constitution, some on citizens like those guaranteed by
Articles 15, 16, 19, 21 and 29 and, some on citizens and non-citizens alike,
like those guaranteed by Articles 14, 21, 22 and 25 of the Constitution. No
individual can barter away the freedoms coferred upon him by the Constitution.
A concession made by him in a proceeding, whether under a mistake of law or
otherwise that he does not possess or will not enforce any particular
fundamental right, cannot create an estoppel against him in that or any
subsequent proceeding. Such a concession, if enforced, would defeat the
purpose of the Constitution. Were the argument of estoppel valid, an
allpowerful State could easily tempt an individual to forgo his precious
personal freedoms on promise of transitory, immediate benefits.”
13. Similarly in Behram Khurshid v. Bombay State, AIR 1955 Sc 123 a
Constituion Bench of the Supreme Court (vide paragraph 52) observed: –
” In our opinion, the doctrine of waiver enunciated by some American Judges in
construing the American Constitution cannot be introduced in our Constitution
without a fuller discussion of the matter. No inference in deciding the case
should have been raised on the basis of such a theory………………
These fundamental rights have not been put in the Constitution merely
for individual benefit, though ultimately they come into operation in
considering individual rights. They have been put there as a matter of public
policy and the doctrine of waiver can have no application to provisions of law
which have been enacted as a matter of constitutional policy.”
14. Merely because there is a temple adjacent to Kottai Kaliamman
Kovil Street and the house of the writ petitioner is situate there that does
not mean that dead bodies cannot be carried through the aforesaid public
street. After all it is a public street and not private land.
15. Of course, if at a particular time poojas (e.g. Aarti) are being
conducted in the temple it is better if the Muslims avoid that time so that
the feeling of the Hindus are not hurt, but they can carry their dead bodies
at other times. A balance should be struck in this connection, but it is upto
the local authorities to make such an arrangement. In a secular country
nobody’s feelings should be hurt, neither the feelings of Hindus nor of
Muslims nor of Christians nor of any other community. No doubt in view of
Article 25 of the Constitution the Muslims can carry dead bodies through any
public street of their choice, but since Article 25(1) specifically states
that this right is subject to public order, the authorities can direct that
dead bodies will not be carried through the street when a particular pooja is
being conducted in the temple so that the feelings of Hindus may not be hurt.
In this way a balance can be struck. The District Collector and the Revenue
Divisional Officer, Palani will hence ensure that proper arrangements are made
in this connection so that there may not be any communal clash. With these
observations the writ petition is disposed off. W.P.M.P.No.28424 of 2005 is
closed.
Index:Yes/
Internet:Yes/
Vu/pv
To
1. The Superintendent of Police,
Dindigul District,
Dindigul.
2. The District Collector,
Dindigul District, Dindigul.
3. The Revenue Divisional Officer,
Palani.
4. The Inspector of Police,
Palani Taluk P.S.,
Palani.