Though your question appears to be an academic question since I don’t know whether you are personally affected by the Calcutta High Court order mentioned in your question, let me try to answer it as I understand it.
This is with reference to the Calcutta High Court order dated 21.09.2017 in WP 24135 (W) of 2017 (Subhankar Chakraborty & Anr. Vs. The State of West Bengal & Ors.) and two other writ petitions.
No doubt, maintenance of law and order is within the exclusive domain of the executive. In fact, in its order, the High Court has specifically acknowledged it. However, the courts have been given certain duties and responsibilities under the Constitution, of upholding the rights of the citizens. The order of the Calcutta High Court in this case clearly mentions that:
“A uniform argument is advanced on behalf of the petitioners of three respective writ-petitions that the aforesaid orders have no reasonable basis and issued on mere caprice, surmise and conjecture and violative of the rights guaranteed under Article 25 of the Constitution of India. According to the petitioners, every citizen of the country enjoys the right of freedom to prefess and propagate religions subject to public order and such public order should have been based on rational and reasonable foundation and not at the whims of the executive authority.”
The High Court highlighted the importance of both Durga Puja and Muharram for the respective communities:
“Durga Puja is celebrated throughout the State and epitomizes the victory of the good against the evil. It is one of the major festivals of the Hindu community and the performance of each rituals which is inherent and inbuilt is followed in a time schedule as provided in various almanac or panjikas. One of the important customs is Devi Baran followed by Sindoor Khela which can only be performed after sunset and are sine qua non to customary rites and ceremonies before the immersion of the Idol. Large sections of the Hindu community are performing the Puja privately or through community, which not only attached to their sentiments and religious belief but the sense of security as well that it would bring all good in their life. Equally, the Muslim communities are sensitively attached to mourning on the eve of Muharram. Both the sections of the society can profess and propagate their religion with harmony and unified manner. The founding father of the Constitution never dreamt of any artificial or real distinction amongst each religions in the country and incorporated Articles 25 and 26 in Part-III of the Constitution.”
The High Court emphasized that the State has to treat each religion equally and there should not be any discrimination in performance of religious rites, rituals, etc., by observing as under:
“It is axiomatic to record that the State has no religion, which is one of the fundamental facets underlying secularism. There should not be any order of precedence in performance of the religious rites, rituals, ceremonies and mourning amongst the religious communities. There should be an equality in every citizen’s right with corresponding obligation of very State to protect the same.”
The Court further held that:
“We are unable to comprehend from the submissions advanced at the Bar, more particularly, from the State any reasonable basis for putting restriction on immersion of Durga Idol till 06.00 p.m. on September 30, 2017 and absolute prohibition on October 1, 2017. The maintenance of law and order is within the domain of the State and the decision to prevent and protect any untoward incident should be founded on the cogent and convincing material and not merely on one’s perception.”
These are only some of the observations made by the High Court in its judgment. You may read the full judgment which is available on the website of the High Court. Therefore, it is quite clear from the above judgment that the High Court has passed its order to enforce the fundamental rights of the Hindus on whom absolute prohibition was imposed for performance of their religious rites discriminating them vis-à-vis the Muslims.
I am of the considered opinion that the High Court was perfectly right in passing such order to quash and set aside a discriminatory and arbitrary order of the West Bengal Government led by Mamata Banerjee.
Please also consider it from the opposite angle, i.e., if a State Government (say, of Uttar Pradesh) had imposed absolute restrictions on Muslims on performance of their religious rites while permitting Hindus to perform their religious rites on the same day, whether the High Court could have interfered in such restrictions? Whether law and order would have been the exclusive domain of the state in that scenario also?
Our Constitution gives equal rights to all religions and let us keep up the basic principles of the Constitution.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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