India - politics over the Bombay High Court Orders: Ganesh Chaturthi Celebrations - Public’s right should prevail over communitarian interests

Daily News and Analysis - 17 July 2015


Ganesh Chaturthi Celebrations: Public’s right should prevail over communitarian interests
Friday, 17 July 2015 - 6:35pm IST | Place: Mumbai | Agency: dna webdesk

Saurav Datta


The pandal politics over the Bombay High Court Orders is just political opportunism. No one knows how political parties read and interpret court's ruling.


The pandal politics over the Bombay High Court orders is just political opportunism. No one knows how political parties read and interpret courts' rulings. Do they take care to observe every word, sentence and paragraph? Do they see how a court arrived at a decision, instead of being incensed by only what the court held?

Do parties, with a religious agenda bother to do a little legal research and see if there are binding Supreme Court rulings delivered earlier? The Maharashtra BJP and Shiv Sena's reactions to the Bombay High Court's 24 June Order would show that the answers to all these questions would be in the negative. The BJP has approached the court with the contention that it hasn't factored in Hindus' fundamental right to freedom of religion. The Sena, true to its tradition, has chosen invective over legal arguments and accused the court of swearing allegiance to Pakistani clerics instead of India's religious majority.

Both the offended and the enraged should do well to read paragraph 8 of the Order. The court, perhaps being mindful of the criticism, if not the tirade it would face, referred to and followed the Supreme Court's judgement in the Babri Masjid case (1995). Any community's fundamental right to practise of religion does not create another fundamental right to offer prayers at every place, the apex court had held. This is because Articles 25 and 26 of the Constitution do not grant a right to possess or encroach upon property, especially if it belongs to the public.

Of street pandals and noise pollution

The high court's Orders in the PIL filed by Dr Mahesh Bedekar in 2010 address two issues. One is the interpretation of Section 234 of the Maharashtra Municipal Corporation Act and its equivalent- Section 317 of the Mumbai Municipal Corporation Act. These provisions vest in Municipal Commissioners the power to allow the erection of temporary booths or similar structures on streets during religious festivals. This power has to be exercised in concurrence with the opinion of the Police Commissioner or District Magistrate.

The court held that "street" means any road to which the public has a right of access - which includes footpaths, footways near railway stations, bus stands, or autorickshaw and taxi stands. And, because the pandals erected for Dahi Handi, Ganpati, Navratri and other festivals willy nilly encroach upon all these places, no permission should be granted if it is likely to lead to traffic congestion and restrictions of pedestrians' and vehicle drivers' rights.

The Shiv Sena's claim - that the court has unduly favoured the Muslim community, is borne out of either ignorance or dishonesty. Because, the court didn't draw up a fixed list of festivals which would be covered by its Order ; it expressly states that the list is only indicative and not exhaustive. Moreover, it hasn't imposed any blanket ban on street pandals or gatherings for worship ; it has only laid down conditions which must be followed before permission is granted.

The second issue before the court was that of noise pollution from loudspeakers. The court noted with alarm and displeasure that because political parties wield considerable muscle-power, the police if often helpless when a citizen's fundamental right to be not disturbed and tortured by the infernal din of religious messages and proclamations of devotion and piety.

Mercifully, at least in this department, the BJP has exercised restraint and informed the court that it isn't averse to complying with the laws on noise pollution. The Sena, on the other hand, has predictably pointed at mosques and accused the court of giving them a free pass. Which again, is both contrived and disingenuous. The high court has neither breached any right, nor bestowed largesse upon any particular religious community. It's ruling is in perfect conformity with binding precedent - the Supreme Court's 1999 judgement in the Church of God case.

The court had held that the right to practise religion did not include the unbridled freedom to use loudspeakers in violation of the noise pollution laws. And this direction applied to all festivals , irrespective of which religious community was organising it.

Religious structures and cynical politics

The saffron parties' action should draw the public's attention to a case which seems to have been strategically relegated to the cold storage. It is SLP (Civil) 8519 /2009, pending before the Supreme Court. The history of this case is a study in the politics of majoritarianism and manipulation. In May 2006, the BJP-ruled Vadodara Municipality demolished a dargah which was more than 200 years old. When Muslims protested, the authorities claimed that it wasn’t a protected monument so didn’t enjoy any immunity. And since temples which encroached upon public roads had also been demolished, it was only an act of maintaining parity. The Muslim community retorted that it was an act of communal vendetta, because the Places of Worship (Special Provisions) Act, 1991 protects structures which were built before 1947.

The Gujarat High Court took up the case by itself and ruled that all illegal places of worship belonging to any community should be demolished. It was a problematic ruling, because the judges didn’t consider the politics at play behind attempts at “uniformity” and “equality”. In its appeal to the Supreme Court, the then Congress-majority Central government should have argued on this point, but it didn’t. The government assailed the High Court for overstepping its limits and intruding into people’s fundamental right to religion, and creating a situation which could lead to communal violence. What happened to the government’s duty to enforce compliance with courts’ orders? This is something the Maharashtra Congress shouldn’t be allowed to conveniently forget, were it to oppose the Sena and the BJP.

On 29 September 2009, the Supreme Court, after having considered the submissions of all State governments, by an interim Order, directed that henceforth, no unauthorized religious structures should be allowed on public places. The status of those already built should be reviewed on a case-to-case basis, and appropriate steps were to be taken expeditiously, the court ruled. Now, with a reversal of dominant political power at both the Centre and Maharashtra, shouldn’t the self-appointed guardians of both Hinduism and “secularism” work towards a final resolution of this case?