As per case facts, petitioners challenged government orders from August 2020 prohibiting Moharram processions in Uttar Pradesh, arguing these were discriminatory and violated their right to practice religion amidst pandemic ...
No Acts & Articles mentioned in this case
Court No. - 32 AFR
Order reserved on 28.08.2020
Order delivered on 29.08.2020
Case :- PUBLIC INTEREST LITIGATION (PIL) No. -
840 of 2020
Petitioner :- Roshan Khan And 2 Others
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- M J Akhtar, Imran Khan, Viquar
Mehdi Zaidi (Senior Advocate
Counsel for Respondent :- C.S.C.
With
Case:- PUBLIC INTEREST LITIGATION (PIL) No. -
841 of 2020
Petitioner:- Japhar Abbas
Respondent:- Union Of India And 2 Others
Counsel for Petitioner:- Sayyed Kashif Abbas Rizvi,
Joun Abbas
Counsel for Respondent:- A.S.G.I., A.N.Rai, C.S.C.
With
Case :- PUBLIC INTEREST LITIGATION (PIL) No. -
842 of 2020
Petitioner:- Syed Zeeshan Mehdi
Respondent:- Principal Secretary And 2 Others
Counsel for Petitioner:- Mashhood Abbas, Sayyed
Kashif Abbas Rizvi
Counsel for Respondent :- C.S.C.
NeutralfCitationfNo)f’fw“w“:AHC:g4Ywg’DB
With
Case:- PUBLIC INTEREST LITIGATION (PIL) No. -
848 of 2020
Petitioner:- Syed Shabbir Shaukat Abdi Alias Shaukat
Bharti And 3 Others
Respondent:- State Of U.P. And 3 Others
Counsel for Petitioner:- Charlie Prakash, Kamal
Krishna Roy
Counsel for Respondent:- C.S.C.
Hon'ble Shashi Kant Gupta,J.
Hon'ble Shamim Ahmed,J.
(Delivered by Hon’ble Shashi Kant Gupta, J.)
1.Since the controversy raised in all the aforesaid Writ
Petitions is identical, they are being decided by a
common order, treating Public Interest Litigation (PIL)
No. 840 of 2020 (Roshan Khan and Others Versus State
of U.P. and others) as the leading case.
2. In sum and substance, the Petitioners seek to challenge
the Government Orders dated 10.08.2020 and 23.08.2020
passed by the State Government, in so far as they prohibit
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the petitioners and members of their community, from
taking out the Moharram Processions, and further seek
the issuance of a direction to the Respondent Authorities
to permit them to perform religious mourning
rituals/practice connected with Moharram, during the
period of ten days i.e. up to 30.08.2020, amid the
pandemic restrictions in the State of Uttar Pradesh.
3. The main thrust of the argument of the learned counsel
for the petitioners is that Government Orders issued by
State of Uttar Pradesh dated 10.08.2020 and 23.08.2020
are discriminatory in nature, insofar as they provide for a
complete ban in taking out the Moharram processions. It
has been further submitted that such guidelines are
discriminatory, targeting only one community in
particular. In support of his contention, he has referred to
the Guidelines dated 29.07.2020, issued by the
Government of India, Ministry of Home Affairs as well
as Government Orders issued by the State Government
dated 10.08.2020 as well as 23.08.2020. Relevant
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portions of Government Orders dated 10.08.2020 and
23.08.2020 are quoted herein below:
Guidelines For Phased Re-opening (Unlock 3)
[As per Ministry of Home Affairs (MHA) Order No. 40-3/2020-
DM-1(A) dated 29
th
July 2020]
1.Activities Permitted during Unlock 3 period outside the
Containment Zones.
In Areas outside the Containment Zones, All activities will be
permitted, except the following:
i.… …
v. Social/political/sports/entertainment/ academic
cultural/religious functions and other large
congregations. … …
... ... ...
5. States/UTs based on their assessment of the situations may
prohibit certain activities outside the containment zones or
impose such restrictions as deemed necessary. … …
...
Government Order dated 10.08.2020
सेवा मे,
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समस्त जिलाधिकारी वरिरष्ठ पुलिलस अीक्षक/पुलिलस अीक्षक,
उ०प्र०।
WA.82avtC N.t3:P2t0vOtvn82Ct praPfoHR, उ०प्र०।
अपर पुलिलस महापिनदेशक(ए०टी०एस०) उ०प्र०।
समस्त मण्डलायुक्त/पुलिलस महापिनरीक्षक/पुलिलस उप
महापिनरीक्षक(परिरक्षेत्र)
उ०प्र०। अपर पुलिलस महापिनदेशक ,
कानून एवं व्यवस्था/अभि.सूचना/सुरक्षा/रेलवे, उ०प्र०।
पुलिलस कपिमश्नर, लखनऊ/गौतमबुद्ध नगर।
समस्त डी०आर०एम०, रेलवे, उ०प्र०।
प्रबन् पिनदेशक, उ०प्र० राज्य सड़क परिरवहन पिनगम,
लखनऊ।
पुलिलस महापिनदेशक, उत्तर प्रदेश, लखनऊ।
सूचनाथ<ः अपर मुख्य सधिचव , r9t n>G (Jdt3d, उ०प्र०शासन।
स्टाफ ऑपिफसर, मुख्य सधिचव, उ०प्र० शासन।
प्रेषकः- गृह पिव.ाग, उत्तर प्रदेश, लखनऊ।
संख्याः- 687K/VI-K/VI-सापिनप्रा-20-7K/VI-(3)/2005 लखनऊः पिदनांक 10
अगस्त, 2020
माह अगस्त, 2020 Ctv:Potur2otDG:prOtGyrt34 rE d, गणेश
1.nyGt'u(t :p <t3:taRtau’)HtA.’yGIt Ct”G:-3.tpIco, को गृह मंत्रालय,
.ारत सरकार की कोपिवड-19 की गाईडलाइन्स का पालन करते हुए सादगी
Cot PrGrt3r'htLPtDG:prOItvOtR:Kt)dt3n2mC, MrNRJtPtaPRr2dt3r't'u(
पिकसी .ी दशा में .ीड़ एकपित्रत न हो पाए।
वत<मान परिरस्थिस्थधितयों में सुरक्षा स्थिस्थधित के दृपिष्टगत सम्.ापिवत खतरों से
C.R< tOpPotRJt”uRGR.rtpShtC)dtFrT RtNy2ItauHoAROt ynOrtONy.
श्रीकृVF t 34 )ma , श्री रामन्म .ूपिम, अयोध्या पर असामाजिक
तत्वों/आतंकवापिदयों एवं समा में अस्थिस्थरता फै लाने वाले व्यपिक्तयों पर सतक<
दृपिष्ट रखने की आवश्यकता है।
इस अवधि मे असामाजिक तत्वों द्वारा कानून-व्यवस्था को .ंग करने
RrtWGrCtaRGrt3rtCR.rtpSt'ut”.(RurfdtPrceORItR:tPnRCrPtvpुंचा
सकते है। अतः उक्त मौकों पर सतक< रहने की आवश्यकता है।
5 of 20
uYF.tveOONyA.GIt CtCruFrPdtpo.ntaPQPtaPfZHtafGot3rtOpotpS=-
1. राज्य सरकार द्वारा समय-समय पर कोपिवड-19 महामारी के रोकथाम हेतु
पिनदZश पिनग<त पिकये गए है, -3CRrtR:rKtCot0Pnvr2PtCnaPA[.tROrGrt3r'h
2. कोपिवड -19 Ct34 rE dtRo t YRo tvOtaRCdtR:t)dt3n2mC / झाँकी की
0Pn A.tPpdtfdt3r'h
3. गणेश चतुथG के मौके पर कोई .ी पूा - पंडाल में कोई .ी मूूर्तित
स्थापिपत न की ाए और न ही कोई शो.ा - GrJrtRJt0Pn A.tfdt3r'h
स.ी श्रृद्धालुओंtR:tWoeO.taRGrt3r'taRti,tDG:prOtR:t0vPo - अपने घरों पर
ही मनायें।
4. LCdtWRrOt :pO< tRo t0uCOtvOtaRCdtWRrOtRo t3n2mC / ताजिया की
0Pn A.tPtfdt3r't'u(tF < - गुरूओं से संवाद स्थापिपत कर कोपिवड -19 के
पिदशा - पिनदZशो का अनुपालन करें।
5. ऐसे समस्त काय<क्रमों की पीस कमेटी की मीटिंटग कराते हुए स.ी
Cr r-3Rt'u(tF <t-गुरूओंtCotDGuNyrtkPrGotOTPot CtCpG:ct82Grt3r'h
6. संवेदनशील/CrQWfrAGRt'u(tR4boP o4bt3:Pt CtvGr<dtC(>Grt Ctvn82C
k2tRJt.SPr.dtRJt3r'h
7K/VI-. aRCdt)dtFrT RtNy2tvOt2:cItRJt)d:t'RJtPtp:Potvr', यह
CnaPA[.taRGrt3r'h
8. त्योहारों पर साव<पिनक स्थल यथा बस स्टेशन, रेलवे स्टेशन और
संवेदनशील स्थान/ार्मिमक स्थल पर यथावश्यक व्यवस्थायें/चेटिंकग कराई
ाए।
-----------------------------------------------------------------
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Government Order dated 23.08.2020
प्रबन् पिनदेशक, उ०प्र० राज्य सड़क परिरवहन पिनगम, लखनऊ।
पुलिलस महापिनदेशक, उत्तर प्रदेश, लखनऊ।
सूचनाथ<अपर मुख्य सधिचव, मा० मुख्यमंत्री, उत्तर प्रदेश शासन, लखनऊ।
स्टाफ आपिफसर, मुख्य सधिचव, उत्तर प्रदेश शासन, लखनऊ।
प्रेषकःगृह पिव.ाग उत्तर प्रदेश शासन , लखनऊ।
संख्या-7K/VI-7K/VI-7K/VI- के/छः-सापिनप्र-2020 लखनऊःपिदनांक-23अगस्त,
2020
6 of 20
कृपया माह अगस्त, 2020 मे पड़ने वाले त्यौहारो को गृह मंत्रालय, .ारत
सरकार की कोपिवड़-19 की गाइड लाइन्स का पालन करते हुGotCrfcdtCot PrGot3rPo
पिवषयक शासन के आदेश संख्या-67K/VI-8के/छः-सापिनप्र20-7K/VI-(j)/2005, )/2005, पिदनांक
10 अगस्त 2020 का संद.< ग्रहण करने का कष्ट करे जिसके द्वारा माह अगस्त मे
v:Potur2otDGYprO:tvOtR:Kt)dt3n2mC, झाँकी न पिनकलने एवं पिकसी .ी दशा मे .ीड़
एकपित्रत न होने के संबं मे पिवस्तृत पिदशा पिनदZश पिनग<त पिकये गये है।
2i,tRo tb t otu.< rPtveOONyA.GItRo tPaEc.tWfoHtRo tC)dtFrT RtNy2:
पिवशेषकर श्री कृVFt34 t)ma t ynOr, UdtOr t34 t)ma t.dy<tloJt, अयोध्या, श्री
काशी पिवश्वनाथ मस्थिन्दर मस्थिन्दर वाराणसी एवं ऐधितहाजिसक स्थल तामहल आगरा की
सुरक्षा व्यवस्था तथा कोपिवड-19 महामारी के संबं मे .ारत सरकार नई पिदल्ली एवं
उत्तर प्रेदश, शासन द्वारा समय-समय पर पिनग<त पिनदZशो के आलोक मे असामाजिक
तत्वो/आतंकवादी एवं समा मे अस्थिस्थरता फै लाने वाले व्यपिक्तयों पर सत<क दृपिष्ट रखने
की आवश्यकता है।
3उक्त के दृपिष्टगत आगामी अवधि मे असामाजिक तत्वो द्वारा कानून-व्यवस्था एवं
CQWfrAGRtCYprf<tR:t)(ctROPotRrtWGrCtaRGot3rPot.yrt”.(RurafG:tXrOr
सामान्य नागरिरकों को नुकसान पहुचाने की सं.ावना तथा कोपिवड-19 महामारी के
W)rutR:tR tROPotRo t82GotaPQP828T.taPfZHtafGot3rtOpotpS=-
पिदनांक -30 जिसतम्बर 2020 तक कोई .ी साव<पिनक समारोह, ार्मिमक
उत्सव एवं रानैधितक आन्दोलन एवं स.ाये आयोजित नही होंगी।
साव<पिनक रूप से मूर्तितयों , .r-3Grt'u(t02ctNyrav.tPpdtaRGot3rGCcoh
C)dtWRrOt3n2mCt'u(tMrNRJtWA.kO4F.tpIcd, 0yr<.t3n2mCt'u(tMrNRJtPpdtaPRr2o
ा सकते है।
मूर्तितयां, ताजिया एवं अलग की स्थापना अपने-0vPot_O:t otaRGot3rPotvOtaRCd
प्रकार की रोक नही होगी।
कोपिवड-19 महामारी के दृपिष्टगत उत्तर प्रदेश शासन द्वारा समय-समय पर पिनग<त पिदशा
aPfZH:tRrtRKrKtCot0Pnvr2PtCnaPA[.tROrGrt3rGoh
4. Learned counsels for the petitioners have further
submitted that Hon’ble Apex Court had allowed the
devotees access to the places of worship and permitted
the Annual Chariot Procession at the Jagganath Temple,
Puri besides recently permitting the offer of Paryushan
prayers in three Jain Temples in Mumbai. It is further
submitted that the prohibition is arbitrary especially when
the proposed rituals can be regulated by prescribing
7 of 20
reasonable restrictions, like limiting the number of people
to carry out the Taziyas till Karbala for burial. It was
submitted that in this way neither there would be
transmission of Covid-19 infections nor would any chaos
be created.
5. Per contra, learned Additional Chief Standing Counsel
appearing on behalf of the State has strongly opposed the
contention so made by the learned counsel for the
petitioners. It was vehemently argued by him that the
aforesaid Government Orders are in no way
discriminatory in nature. While referring to the
Government Orders dated 10.08.2020 and 23.08.2020, it
was argued that restrictions have also been imposed upon
the Hindu community and they have been prohibited
from raising any Pooja Pandals or installing any
statues/idols or even taking out processions during the
festival of Ganesh Chaturthi and the devotees were
encouraged to celebrate the festival in their respective
homes. Likewise, the Muslim community has also been
restricted from taking out any Taziyas or processions, in
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order to prevent the spread of Covid-19. He further
submitted that restrictions have been imposed on all the
communities.
6. Learned Standing Counsel also referred Clause 5 of the
Notification dated 29.07.2020 of the Central
Government, wherein the States/Union Territories (UTs)
have been duly empowered to prohibit certain activities
outside the Containment Zones or impose such
restrictions as deemed necessary, based on their
assessment of the situation.
He further submitted that the State Government
considering the rapid surge of Covid-19 cases in the State
of Uttar Pradesh, issued Guidelines on 10.08.2020,
directing all the concerned Officers of the State to
prohibit any kind of procession, falling in the month of
August, 2020 for example Janmashtami, Ganesh
Chaturthi and Morahham, as such, the State Government
has imposed restrictions/ban on any kind of procession,
across all communities, without any discrimination. He
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further submitted that the drastic step of prohibition has
been taken for all communities, on account of the
extraordinary situation created due to the pandemic and,
therefore, in the given circumstances the total prohibition
is reasonable and not violative of the fundamental rights
of the petitioners or members of the any community, as
sought to be alleged.
It was further argued that in case the petitioners are
permitted to take out processions or Taziyas for burial at
the Karbala, it may lead to chaos and an uncontrollable
surge of the pandemic.
7. Learned Standing Counsel further stated that the
Division Bench of this Court in Public Interest Litigation
No. 749 of 2020 (Dr. Mohammad Ayub Versus State of
U.P. and others) vide its judgment dated 29.07.2020 had
dismissed the writ petition, wherein a relief was sought
for relaxing the guidelines for the festival of Eid-ul-Adha.
He further referred to the decision of the Hon’ble Apex
Court in the case of Odisha Vikash Parishad Vs. Union
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of India and others, wherein in paragraph no. 9 of the
judgment the Hon’ble Apex Court has observed as
follows:
“(9) The bare minimum number of people shall be
allowed by the Committee to participate in the rituals
and in the Rath Yatra. We take note of the fact that
the State of Orissa has a good record of having
controlled the pandemic with a very little loss of life.
We see no reason why the same attitude of care and
caution should not be applied to the Rath Yatra.”
8. Heard Mr. V.M. Zaidi, Senior Advocate, Mr. S.F.A.
Naqvi, Senior Advocate, Mr. S.K.A. Rizvi, Mr. K.K. Roy,
learned counsels for the petitioners, Mr. S.P. Singh,
learned Addl. Solicitor General of India assisted by Mr.
A.N. Rai, Counsel for the Union of India, Mr. Ramanand
Pandey, and learned Additional Chief Standing Counsel,
appearing on behalf of the State and perused the material
available on record, particularly Notification dated
29.07.2020 issued by Central Government and
Notification dated 10.08.2020 and 23.08.2020 issued by
the State Government.
9. It is notable that earlier a writ petition, filed by Syed
Kalbe Jawad i.e. Writ Petition (Civil) No. 924 of 2020,
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before the Apex Court which was dismissed as
withdrawn with liberty to approach the Allahabad High
Court on 27.08.2020 and no relief was granted by the
Apex Court in the aforesaid matter.
10. That in view of the aforesaid contentions, the issues
that arise for determination before this Court are:
(1) Whether the impugned Government Orders are
arbitrary and discriminatory inasmuch as they seek to
target a particular community?
(2) Whether the complete prohibition on carrying out
processions or Taziyas on 30.08.2020, violates the
Fundamental Right to practice and profess religion
guaranteed under Part III of the Constitution of India and
whether the rituals ought to be permitted by imposition of
reasonable restrictions instead?
(3) Whether in view of the prevalent situation of the
pandemic, the imposition of complete prohibition from
carrying out processions or Taziyas on 30.08.2020, is
reasonable and justified?
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11. With regard to the first issue it may be noted that the
main thrust of the argument of the learned counsel for the
petitioners has been that restrictions imposed by the State
Government are discriminatory in nature and only one
community has been targeted in the aforesaid
Government Order. This argument advanced by the
learned counsel for the petitioner has no legs to stand on
and appears to be patently misconceived.
12. A bare perusal of the Notifications dated 10.08.2020
and 23.08.2020, issued by the State Government, clearly
indicates that the same yardstick has been adopted for all
religious communities and they have been restricted from
carrying on any processions or Jhankis or activities that
have a danger of large congregations that may lead to a
spread of the pandemic- Covid-19. Regard may be had to
Clause (2) of the Notification dated 10.08.2020, that
clearly indicates that no processions or Jhankis have been
permitted during the Janmastami festival. Similarly,
Clause (3) of the said Notification also indicates that
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during the Festival for Ganesh Chaturthi too, the Hindu
community has been prohibited from erecting any Pooja
Pandals and from installing any statues/idols. Likewise,
the Muslim community has been prohibited from taking
out processions/Tazias during Moharram.
13. Thus, it is clear that in view of controlling the spread
of Covid-19, the State Government has imposed a
complete prohibition on all religion activities that may
involve a large conglomeration of people, across
communities, and as such the government orders are not
discriminatory nor do they target any Community, in
particular.
14. Since the Second and the Third issues are interrelated,
they are being dealt with together. The contention of the
learned counsel for the petitioners is that the total
prohibition imposed on the processions and carrying out
Tazias is completely arbitrary especially when reasonable
restrictions could easily be imposed, keeping in mind the
Guidelines, issued by the Government for prevention of
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spread of Covid-19. It is therefore accepted that with the
prevalent rate of transmission in Uttar Pradesh, large
processions cannot be permitted and certain restrictions
are necessary for controlling the spread of the pandemic.
15. It has further been sought to be urged that even the
Hon’ble Apex Court had allowed the devotees to access
the place of worship and permitted the Annual Chariot
procession (Rath Yatra) of Jagganath Temple, Puri and
further permitted to offer Paryushan prayer in three Jain
Temples in Mumbai, then the petitioners, too must be
permitted to carry out procession during Moharram.
16. In this regard it may be noted that the Apex Court had
not passed any general directions, but the permission to
carry out the Annual Chariot Procession (Rath Yatra),
pertained to a specific place, Puri, and only from one
point to another. Further, the intensity of Covid-19 spread
in Orissa, was also duly noted by the Hon’ble Apex
Court, while granting the permission.
15 of 20
17. However, the present case, is clearly distinguishable
from the aforesaid cases since it pertains to the entire
State of Uttar Pradesh and is not confined to one or a few
districts. In this regard it may be noted that it would be
discriminatory to grant permission to certain districts
while prohibiting the others. Further the intensity of the
spread of the contagion in the State is rising at an
alarming rate.
18. That we have also given serious thought to working
out some mechanism in order to permit the processions
for Taziyas burials, while imposing certain restrictions.
However, no such workable mechanism could be
suggested even by the Counsels for the Petitioners.
19. It may be noted that Taziyas are a replica of the tomb
of Husain, the martyred grandson of Prophet Muhammad,
and the same is taken to be buried to a burial ground
(Karbala) by innumerable groups as well as by
individuals on the 10
th
day of the Muharram or the day of
Ashura. It is also a custom that any person who makes a
16 of 20
Taziya must take it himself and bury it at the designated
burial ground. Many individuals even seek to bury the
Taziyas as a fulfilment of their Vows.
20. Therefore there is no doubt that the burial of the
Taziyas at the burial ground is a solemn and important
part of custom of Muharram. However, it is necessary to
note that every locality/colony has Taziyas, besides
various individual families, all of whom have to get to the
burial ground, since the burial of Taziyas cannot be
deputed but has to be done personally. There is no
mechanism fathomable, by the means of which it can be
ensured that all such persons be permitted to take the
Taziyas to the burial ground in a single day, while
avoiding the risk of transmission of the contagion or
following basic rules of social distancing, which are an
absolute necessity in these unprecedented times. Another
important aspect of the matter is that no restriction can be
placed only on certain groups or individuals while
permitting the others, since that would clearly amount to
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forming a class within a class, which would be arbitrary
and discriminatory.
21. Further, at this juncture regard may be had to the
intensity of Covid-19 transmission in the State of Uttar
Pradesh, which is alarmingly high. It may be noted that
the Uttar Pradesh is the most populated State in the
Country and is at the Stage of Community Transmission
on account of which it has quicky reached the 4
th
spot
amongst the States in the number of active cases, with
each passing day, the highest number of cases being
reported. Further, this Court in P.I.L. No. 574 of 2020,
while taking cognizance of the rise in intensity of the rise
of Covid-19 cases across the state, directed the State
Government vide order dated 25.08.2020, to present an
action-plan to contain the contagion. The Court also
observed that any step lesser than a lock down would be
of no help.
22. Therefore, although the complete prohibition of
practices which are essential to our religions is an
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extraordinary measure, it is very much in proportion to
the unprecedented situation we are faced with, owing to
the pandemic. The right to practise and propagate religion
has been made subject to public order, morality and
health, even under the Constitution of India.
23. The Pandemic is spreading like wild fire, despite
harsh lockdowns. We are standing naked at the shore and
don’t know when the huge wave of Corona may sweep
us into the deep sea. We really don’t know what
tomorrow holds. Adoption of safe practices are needed to
win over the health crisis. We need to understand the Art
of living with the Corona Virus.
24. Therefore it is with a heavy heart that we hold that in
these testing times, it is not possible to lift the prohibition
by providing any guidelines for regulating the mourning
rituals/practice connected with the 10
th
day of Moharram.
We must hope and trust that God would perceive our
restraint in our customary practices, not as a slight, but as
an act of compassion for our brothers and sisters and give
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us the opportunity to celebrate all festivals with greater
faith and fervour in future. It is only together with co-
operation, understanding and support, we as ‘One
Nation’, can emerge stronger from these treacherous
times and overcome this season of darkness.
25. In view of the above, we do not see justification to
issue any directions in the matter. The present Public
Interest Litigation as well as Public Interest Litigation
Nos. 841 of 2020, 842 of 2020 and 848 of 2020 are
accordingly, dismissed.
Order Date:- 29.8.2020
Arun
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