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(SUPREME COURT OF INDIA)
GULAM ABBAS AND OTHERS
STATE OF U.P. AND OTHERS
DATE OF JUDGMENT23/09/1983
Writ Petition No. 4675 of 1978.
(Under Article 32 of the Constitution of India)
A. K. Sen, Mrs. Urmila Kapoor and Hashan Imam for the Applicant.
F.S. Nariman, M. Qamaruddin, Altaf Ahmed and Rizwan Hafiez for the Opposite side.
The Order of the Court was delivered by TULZAPURKAR, J.This Miscellaneous Petition for directions is an off-shoot of this Court's decision in the main Writ Petition No. 4675 of 1978, referred on November 3, 1981, in a dispute inter se between the members of the Shia and Sunni sects of Muslims of Varanasi, pertaining to the performance of religious rites, practices and observances by members of Shia sect on certain plots and properties situated in Mohalla Doshipura, Varanasi. The final result in that matter was expressed by this Court in these terms:
“In the result we held that the petitioners and through them the Shia community of Mohalla Doshipura, Varanasi, have established their religious rites, practices observances, ceremonies and functions minus the recitation and utterance of Tabarra (detailed in the writ petition) over the plots and structures in question and respondent 5 and 6 and the Sunni community of Mohalla Doshipura are permanently restrained by an injunction from interfering with the exercise of said rights in any manner by the petitioners or members of Shia community and respondents 1 to 4, particularly the executive magistracy Varanasi is directed, if action under s.144 Cr. P.C. is required to be taken, to issue their orders under the said provision having regard to the principles and the guidelines indicated in that behalf in this judgment.” So far as the members of the Sunni community are concerned, in view of the ultimate decisions rendered in two earlier suits (Suit No. 424 of 1931 and Suit No. 232 of 1934) this Court found that all the rights which the Sunnis had claimed in those representative litigations stood finally negatived except for one religious practice for which some liberty was reserved to them. To recapitulate the precise liberty reserved to them, it needs to be stated that in Suit No. 424 of 1931 there was prayer for actual removal of graves, if any, found on plot No. 602/1133, that the evidence clearly showed that there was only old grave of Maulana Hakim Badruddin situated on the southern side of the said plot existing since 1307 Hazri and it was with regard to this grave that the Court had observed that it would be a bit improper that the soul of the dead be stirred and the defendants be ordered to remove the same and they (Sunni Muslims) were given liberty to read Fathia over that grave but what is significant is that the Court issued permanent injunction restraining the defendants and through them the Muslims of Varannsi (in fact the Sunni Muslims) from using the plot in future as burial ground. Even the liberty to read Fathia over grave of Maulana Hakim Badruddin was to be exercised with due regard to the rights of the Maharaja. In other words, excepting this liberty to read Fathia over the grave of Maulana Hakim Badruddin the Sunni Muslims did not have any other rights over the plot in question. All other rights in regard to performance of religious rites, practices and observances over the other plots of structures thereon were negatived in Suit No. 232 of 1934. It is obvious that their rights cannot be enlarged or reduced in these proceedings. However, as regards the mosque standing on plot No. 246 is concerned this Court clarified the position that it belonged to both the communities and members of both were entitled to perform their worship by offering prayer and namaz therein.
Notwithstanding the aforesaid clear and categorical decision of this Court it appears that during the two Moharram festivals that were to be celebrated in December 1981 and October 1982, grave apprehensions of breach of peace and break-down of public order were entertained by members of the Shia community and on each occasion directions wer required to be given by this Court with a view to ensure that all the ceremonies at the festivals went off smoothly and peacefully and notwithstanding the directions issued by this Court on the occasion of the 1981 festival some ugly incidents of violence, stone-throwing, hurling of acid bulbs bottles, etc. did occur in respect whereof contempt proceedings were required to be taken and criminal cases are pending. It may also be stated that on the occasion of Barawafat ceremony which was desired to be performed by the Shias on 9.1.1982, the Sunnis also wanted to have their Chaddar function and reading of Fathia on the grave and, therefore, this Court with a view to avoid any possible breach of peace had to direct that only Shias would be allowed to perform their ceremonies and the Sunnis were restrained from performing….
We are referring to these events that have transpired since after the rendering of our main decision in Writ Petition No. 4675 of 1978 because they clearly suggest that some permanent solution of this perennial onflict between the two sects over the performance of their religious ceremonies and functions is desirable so that their religious ceremonies and functions could be performed in future without any violence, breach of peace and disturbance of public order.
With the aforesaid end in view by our order dated 4th October, 1982 we appointed a Committee of seven persons consisting of these nominees of the Shias, three nominees of the Sunnies under the Chairmanship of the Divisional Commissioner of Varanasi (present incumbent Shri S.K. Mukherjee) for going into and submitting its report to us The report states that Sunnis vehemently opposed the idea of shifting of any grave from its present site and even with regard to the proposal of the cordoning off the two graves by a wall they were not agreeable.
The Sunnis have raised two objections to the acceptance of the suggestion of the Chairman, namely, (a) the suggestion has not only hurt the sentiments of the majority community of Sunni Muslims but is destructive of their fundamental rights and fraught with dangerous consequences and (b) the suggestion in any event is outside the jurisdiction of the Court and the scope of the proceedings before it. In our view, there is no substance in either of the objections. Counsel for the Sunnis relied upon five 'Futwas' issued by their religious heads (Head Muftis and Shahi Imams) from Delhi, Banaras and Patna stating the position under Sheriat Law.
The common theme in all these Futwas is that under Sheriat Law respectingof graves is the religious obligation of every Muslim, that shifting of dead bodies after digging old graves in which they are lying buried is not permissible and to do so would amount to interference with their religious rights. True, this position under Sheriat law cannot be doubted but as explained earlier the religious rights of every person and every religious denomination are subject to “public order”, the maintenance whereof is paramount in the larger interest of the society. For instance, the ecclesiastical edict or right not to disturb an interred corpse is not absolute as will be clear from the sec.176 (3) of Criminal Procedure Code which permits its exhumation for the purpose of crime detection and thi provision is applicable to all irrespective of the personal law governing the dead. In fact, quoting a Hadit, one of the Fatwas relied upon by the contesting respondents states “unnecessary shifting of graves is also not permissible”. The edict clearly implies that it may become necessary to shift graves in certain situations and exigencies of public order would surely provide the requisite situation, especially as the fundamental rights under Articles 25 and 26 are expressly made subject to public order. In the circumstances in directing the shifting of two graves in question for the purpose of maintaining public order which would be in the larger interest of the society, we do not think that we are doing anything irreligious. In the circumstances the first objection is overruled.
As regards the second objection, we fail to appreciate as to how the impugned suggestion of the Chairman of the Committee is beyond the powers of this Court or outside its jurisdiction or outside the scope of the proceedings before us. The main decision rendered by this Court and the directions issued by it have to be implemented removal of any impediment or obstruction in that behalf cannot be said to be beyond the powers or jurisdiction of this Court and since the acceptance and implementation of the suggestion of the Chairman of the committee would facilitate the carrying out of the main judgment of this Court the issuance of directions sought by the petitioners would obviously fall within the scope of the present proceedings. C.M.P. has, therefore, to be allowed. It is clarified that the order and directions hereby given are intended to bind the parties hereto and all members of Shia and Sunni Muslims of Varanasi but will not affect the rights, if any of third parties such as the Maharaja of his heirs of legal representatives over the plots in question.