LexGULAM ABBAS AND OTHERS versus STATE OF U.P. AND OTHERS
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A B c D .E G H 64 GULAM ABBAS AND OTHERS , v. STATE OF U.P. AND OTHJ:lRS September 23, 1983 [V. D. TUlZAPURKAR, D. A. DESAI AND A. P. SEN, JJ.] ConstitUtlon of India-Arts. 25 an'd 26-Scope of-Exercise of reliziou1 rights is subject to maintenance of public order..:....Shifting of graves for the purpose ,of m,aintaining public order is hot irreligious or destructive of llf..ndamental rights. While deciding a writ petition relating to the dispute regarding perfor- mance of religious rights, practices· and observances by members of Shia sect on a plot of land in a mohalta, the Court permanently restrained the Sunni commtinity of that rriohalla by an injunction from interfering with lhe exercise of such rights of Shia community. However, the Court found that in an earlier litigation the Sunni community had been given the IibCrty to read Fathia over the grave cff Maulana Hakim_ Badruddin only found to 'be existing in the plot and that the other two graves had come up contrary to the Court's injunctioi:J. · in the earlier litigation. Notwithstanding the above decision the members of Shia community apprehended breach of.peace and disturbance of public order and the Court had to give directions on each occasion with a view to ensure that all the ciremonies went off smoothly. The Court, with a view to find some permanent solution to this pere'nnial conflict between the two sect~ appointed a committee to go into the question, inter alia, whether the tw~ other graves now found in that plot could be shifted to some other convenient place. The Chairm8n of the Committee opined that 'the suggestion to shift the two graves located on the northern side of the plot to. the south of the grave of Mau!ana 1-Iakim Badruddin was quite feasible as there was sufficient space in the suggested area and that such shifting of the two graveS will totally separate the places of worship of Shias and Sunnis. The petitioners (Shias) filed the present petition for issuance of directions to implement the above suggestion. AJ lowing the petition, HELD : The suggestion to shift the two graves cannOt be regarded as irreligious or destructive of any fundamental rights of the Sunni!. [69G; 71E] Articles 25 and 26 qf the Constitution undoubtedly guarantee (a) to all persons freedom of conscience and free profession, practice and propagation of religion and (b) to every religious denomination or·any section thereof freedbm to manage it&i own a_ffairs in matters of religion but both these funda- mental ri~bts have'been expressir rna<;le "subJect to ~uQitc orQer. ~orality a~p .·~ \. I l' ·-+ , .GULAM ABBAS v. U.j'. STATE (Tulzapu~kar, J.) 65 health". ThC impugried suggestion was mooted by the Court and has now been found to be feasible by the -Chairman of .the 'Committee in the larger interest of the society for the purpose of maintaining public order o~ every occasion oftne performance 'of thc_ir religious cere\nonies and fu~ctions by members of both the sects., Over several years in the' past experience has shown that such performance of their religious ceremonies and functions was and has been invariably accompanied by ugly incidents of violence, damage or destruction to ]jfe and property.putting public order in great jeopardy or that, the perforn1allce by members of both the sects was required to be' Prohibited by orders under s. J.14 Cr. P.C. The. latter course benefits neither 3.nd obvj- ouS1y mem~ers Of neither community could be permitted to' exercise their fundmental rights under· Arts. 25 and 26 so as to put public order in jeopardy. [69 H, 70 A-DJ The religious rigllts of every person and every religious denomination 1 are subject to "public order", the maintenance whereof is paramount in the larger interest of the soci2ty. The ecclesiastical edict or right not to disturb an interred corpse is not absolute as '!"ill be clear from' sec. 176(3) of Criminal Procedure Code which permits its exhumation for the purpose of crime detec- tion and this provision is" applicable to all irrespective of .. the personal law governing.the dead .. The edict celarJy 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 funda_mental rights under Articles 25 and 26 expresslY made subject to public order. (71 B-D] \ The impugned suggestion merely seeks to shift those two graves from
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