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HC's Message to Mamata: Don't Blur the Lines Between Restriction and Prohibition

Both the judges repeatedly highlighted that there is a difference between “restriction” and “prohibition,” and that by abusing the massive powers that rest with the government the line between the two should not be blurred… especially when the fundamental rights of citizens are at stake.

Sougata Mukhopadhyay | CNN-News18

Updated:September 21, 2017, 9:19 PM IST
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HC's Message to Mamata: Don't Blur the Lines Between Restriction and Prohibition
West Bengal chief minister Mamata Banerjee during the inauguration of a Puja Pandal in south Kolkata. (Image: @MamataOfficial)
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Kolkata: The impact of the Calcutta High Court interim order, which in effect scrapped the Bengal government’s prohibitory order on Durga idol immersion on the day of Muharram this year, addressed a larger question than just its immediate context: whether governments exercise their powers over citizens arbitrarily on the basis of certain presumptions that have little connection with reality.

During the course of hearing, the division bench of the Calcutta High Court invoked Articles 25 and 26 of the Constitution, which guarantees the fundamental rights of citizens to practise and propagate their religion of choice. It asked whether the current prohibition infringed upon those rights.

When the Bench further asked on what basis the government apprehended a law and order breakdown if the two communities observed their faith simultaneously, Advocate General Kishore Dutta, representing the state, clearly struggled for a convincing reply.

“On the basis of the presumption that a satellite may fall from the sky on top this court, would your government vacate these premises and stop all proceedings?” asked Justice Harish Tandon. Acting Chief Justice Rakesh Tewari also drew attention to the “arbitrariness” of the order. “Imagine a situation where there is no crowd and no violence, but your police force starts to fire,” he said.

Both the judges repeatedly highlighted that there is a difference between “restriction” and “prohibition,” and that by abusing the massive powers that rest with the government the line between the two should not be blurred… especially when the fundamental rights of citizens are at stake.

“This court does not find any reasonable basis or foundation for the issuance of the aforesaid orders abridging and/or curtailing the right to profess religion and performance of rituals. Neither any case has been made out… that there is or there was a possibility of any untoward incident or that any such incident was there in the past,” the HC order read.

Priyanka Tibrewal, one of the three petitioners in the case, put the controversy and the order into perspective. “I believe no one, not even from the Muslim community, had urged the chief minister to impose the immersion ban. And no one from the Muslim community has come forward to challenge our petition in court,” she said. The court, too, had observed the second part of her statement.

Mamata Banerjee’s response, however, was sharp. “You can slit my throat. But you cannot tell me what to do. I will do what I can to maintain peace. I can take responsibility for peace but I won’t take any responsibility for the violence,” she said during the inauguration of Ekdalia Evergreen Puja Pandal in south Kolkata.

But within three hours of the order being pronounced, she passed the responsibility of possible violence on “troublemakers” fair and square.

The politics over the affair is already telling. Her political opposition in the state, the BJP, chuckled and called the court order a “body blow to her appeasement politics”. The Left also used the opportunity to sting her with “autocracy” barbs and rejoiced at her embarrassment.

But a defiant Banerjee threw that allegation to the winds. “When I inaugurate Durga Puja pandals, who do I appease? When I visit temples or perform Kali Puja at home or attend Buddha Purnima programmes, does anyone ask who I am appeasing?” she retorted.

The Trinamool Congress, conspicuous by its silence, is evidently licking its wounds by merely quoting its leader. “Attempts are being made to belittle the culture of Bengal,” read one of the tweets from its official handle.

But with the dark clouds of polarisation clearly visible on Bengal’s social horizon and political parties desperate to cash in on that, it’s anybody’s guess till how long judicial interventions like these can keep the cracks from widening. There is, after all, an all-important general election to be fought in less than two years’ time.
(Get detailed and live results of each and every seat of the state Assemblies in Madhya Pradesh, Rajasthan, Telangana, Chhattisgarh and Mizoram to know which candidate/party is leading or trailing and to know who has won and who has lost and by what margin. Our one-of-its-kind Election Analytics Centre lets you put on the psephologist's hat. Know interesting facts and trivia about the elections. Elections = News18)
| Edited by: Puja Menon
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