In a special hearing on Monday during the week-long Dussehra holidays, a vacation Bench of the Supreme Court asked the Maharashtra's Disaster Management Authority to take a call by Tuesday on permitting a procession of the Guru Granth Sahib at 5 am, with limited gathering, in Nanded town.
It was hearing a petition by the Gurdwara Sachkhand management board for allowing the customary annual procession on the death anniversary of Guru Gobind Singh, the tenth Guru of the Sikhs, who breathed his last in the Gurdwara there.
The Bench of Justices L Nageswara Rao, Hemant Gupta and Ajay Rastogi asked the management to submit a request to the authority's secretary and move the Bombay High Court if not satisfied, directing the authority to hear the Gurdwara management's plea on Tuesday and take the decision depending on the current Covid-19 scenario.
The Gurdwara management board had sought permission to conduct the Dussehra, Takht Isnan, Deepmala and Gurta Gaddi events as per the three centuries-old custom maintained by the Gurudwara, the Maharashtra government pointed out.
In an affidavit, it said that allowing the Nanded gurudwara to hold the Dusshera procession as per custom will not be a "practically feasible option amid Covid-19 and that the state has taken a conscious decision of not allowing religious functions to check the spread of the virus.
The state government said that as per its past experience, it is impossible to monitor the strict observance of conditions and restrictions imposed and the only consequence is the spread of the deadly infection, a situation that is irreversible. Senior advocate Devdutt Kamat appeared for the state government, urging the court to reject the petition.
On the petitioner saying that the procession route has been reduced to 1.5 km and will be held in the evening when few people will come. Solicitor General Tushar Mehta, appearing for the Centre, seemed to allow the procession, suggesting that "the procession is 1.5 km, which could be held between 7-9 am so that only the persons participating in the ritual are there and passers-by are not involved."
The Court, however, asked how the state can permit one festival and ban others. Justice Nageswara Rao said, "Maharashtra says so many festivals which involved processions have been banned. They have said when Ganesh Chaturthi etc were banned, then how can the State allow this other festival...others too will also ask for permission. Would you be giving permission for one festival to give way to others?"
The S-G submitted that "this is not a festival celebrated across Maharashtra but restricted only to Nanded and it is restricted to a community with small numbers."
Instead of the Gurdwara management offering to wind up to procession by 5 pm in the evening, the idea of holding it early in the morning came from Justice Gupta. "I come from Punjab, and the Gurudwaras there have the practice of Prabhat pheri. Can't they hold the procession at 4/5 am," he asked.
The Maharashtra counsel Devdutt Kamat pointed out that "Ganpati is the most important festival in Maharashtra and the same request was made that only 4/5 people will be allowed in every pandal, but we did not permit any procession." He said especially when the count is now going lower; we are in no position to permit any processions.
Advocate Praveen Chaturvedi, appearing for the Gurdwara board, argued that the procession would be in the form of a truck carrying Akal Takht and there will be "live telecast" for the devotees. "We are asking people in the community to not come. We will have a truck on which the Granth Sahib will be kept. We will telecast the proceedings." Moreover, he said since the state government had allowed marriages to be performed with 50 people in attendance, the procession can be allowed with 40 to 50 people.
The Bench sought to know why the State couldn't impose a curfew like the one which was imposed in Puri for the Jagannath Yatra procession. "In Puri also there was a restriction, but many people turned up. Processions are not being allowed now. You can have only 40 to 50 people but what about the people on the road? What if people come and attend the procession," it asked.
Maharashtra counsel Kamat replied that it was "not about curfew or baricades" as "hundreds of people will come from across the country and crowd control will not be possible," citing a request letter of the Gurdwara management on September 28 that said that "lakhs of people will come from all over the country." He noted that the Gurdwara had sought permission to hold five processions after October 22 up to November.
He argued: "Look at the Amarnath case order of the Supreme Court. It said clearly that it is for the state government to consider all of this. Centre's guidelines are guidelines. It is for the states to consider the situation. Maharashtra has borne the brunt of COVID-19 cases. Consider the danger of allowing gatherings. 40 persons of a family came together in Kalyan to celebrate in one house. One of them was COVID positive, and 38 members of the family became positive after this."
When the Court cited the Centre's guidelines of September allowing gatherings up to 100 people, Kamat interjected: "The Centre's guidelines are just the guidelines. As far as the state rules are concerned, there is a 30 September order that clearly states that congregation are strictly prohibited. It's for the states to consider situation. Maharashtra has borne the brunt of Covid cases."
He asked the Court to keep in mind parameters of a judicial review. Its jurisdiction comes in if the decision making is done arbitrarily, but here the decision is based on ground reality. It was at this stage that the Maharashtra's counsel suggested to ask the Gurdwara management to file a representation to the state disaster management authority.
In its order, the Court noted Maharashtra's plea that the ban has been imposed on all religious functions, be it Gudi padwa, akshaya tritiya, Ashadhi ekadashi, Pandharpur Jatra, Bakrid, Gukulashtami, Ganesh Chaturthi, Muharram, or Navaratri. Procession rituals prevalent for hundreds of years were not permitted, the Maharashtra counsel argued.