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2015 Supreme(Ker) 667
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ASHOK BHUSHAN & A.M.SHAFFIQUE, JJ.
KRISHNA DAS. C. & Ors. – Petitioners
Vs.
STATE OF KERALA & Ors. – Respondents
W.P(C) Nos.8010, 8388, 10040 & 11343 of 2011 & W.P(C)No.24154 of 2012
Decided On : 02-07-2015
For the Petitioners: SRI. P.B. KRISHNAN, SMT. GEETHA P. MENON, SRI. P.B. SUBRAMANYAN
For the Respondents:SPL. GOVT. PLEADER SRI. P. JAYASANKAR, SRI. P. VIJAYA BHANU, SENIOR ADVOCATE, SRI. AJEESH K. SASI, SRI. UNNI SEBASTIAN KAPPEN, SRI. M.K. DILEEP KUMAR
Headnote:
Panchayat Raj Act, 1994 - Sections 166 & 254 - Kerala Panchayat Raj (Burial and Burning Grounds) Rules 1998 - Use of Burning - Right of Members of Hindu Community - Burning ghat situated outside Panchayat area- Held, There cannot be any dispute that any right of a person to perform any religious practice on a sacred place is subject to health, morality and public order. The State is fully competent to prohibit religious practices which endanger health - Faith and belief that by performance of last rites of a dead professing Hindu Religion at the banks of river Bharathapuzha salvation is achieved or it is a holy burning ground, the said practice can be held to be part of Religion and protection of Article 25 is extended to such faith and belief. Submission of the petitioner that prohibiting use of burning ghats to members of the Community situated outside the Panchayat area is violative of Article 25 has substance. However, right to freely profess, practice and propogate Religion is subject to public order, morality and health as has been provided in Article 25(1) of the Constitution of India
Ashok Bhushan, J.
These five Writ Petitions raise inter related issues of facts and law, hence those are heard together and are being decided by this common judgment.
2. “Ivor Madom” located at Pampadi desom in Thiruvilwamala Grama Panchayat (for short, “the Panchayat”) on the banks of river Bharathapuzha is believed as one of the sacred burning ghats in South India by Hindus. The main issue is as to whether the Panchayat can pass a Resolution restricting the use of the burning ghat only by persons within the territorial limits of the Panchayat.
3. The sequence of events and facts giving rise to the above Writ Petitions are:
4. W.P(C) No.8010 of 2011 (Krishna Das C. and another v. State of Kerala and Others) has been filed by two petitioners. The 1st petitioner claims to be a resident of the Panchayat and the 2nd petitioner claims to be a permanent resident of the Kadukutty Grama Panchayat. Petitioners pleaded that Ivor Madom situated on the banks of river Bharathapuzha is one of the most sacred burning ghats in the country. It is recognized as “Dakshina Kasi” and one among the five holy sites for cremation in the Country. It is pleaded that the five sites are Kasi on the banks of river Ganga, Swarga Dwar at Puri, Pushkar in Ajmer, Siddapur on the banks of Narmada and Ivor Madom on the banks of river Bharathapuzha. It is submitted that there is no similar sites for cremation in the State. Petitioners' case is that in view of the special status of Ivor Madom dead bodies from far and wide are cremated in that burning ghat. In the olden days dead bodies from the erstwhile Cochin State, Malabar and Venganad were cremated at Ivor Madom and that situation has remained the same after the advent of the Constitution. On 05.03.2011, a Resolution has been passed by the Panchayat that from 01.04.2011 onwards dead bodies from outside the Panchayat will not be permitted to be cremated at the burning ghat at Ivor Madom. Petitioners claimed that the decision has been objected by many quarters, in support of which a petition submitted by the Government Home for Physically Handicapped and aged, Koduvayur in March is annexed as Ext.P2. Another letter dated 11.03.2011 from Asrayam Charitable Society is annexed as Ext.P3. Both the petitioners challenged the decision of the Panchayat dated 05.03.2011 and has filed the Writ Petition praying for the following reliefs:
(i) Issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P1.
(ii) Issue a Writ of mandamus or any other writ, order or direction directing respondents 2 and 3 to consider and dispose of Exts.P2 to P4 petitions in accordance with law.
(iii) Grant the petitioners such other appropriate reliefs that this Hon'ble Court may deem fit to grant and
(iv) Award the petitioners the cost of this Writ Petition.”
In the Writ Petition counter affidavit has been filed by the Panchayat, to which reply affidavit has also been filed by the petitioners.
5. W.P(C) No.8388 of 2011 (K.Krishnakumar v. State of Kerala and Others) has been filed by the petitioner who is an Advocate practising in Ottappalam Bar. Petitioner pleads that all that is included between the periods when a human soul gets into the womb of a mother until the body ends in a crematorium freeing the soul, is decided in accordance with spiritual rights which is the basic concept of 'Shodasha Samskar' as believed and followed by a Hindu. It is pleaded that in the five snana ghats on the banks of river Bharathapuzha cremation is done only in Thiruvilwamala. Petitioner further pleads that what is “manikarnika ghat in Varanasi is “Thiruvilwamala to Bharathapuzha.” Petitioner challenges the Resolution, Ext.P1, passed by the Panchayat prohibiting cremation of dead bodies from outside the Panchayat from 01.04.2011. Counter affidavit has been filed by the Panchayat.
6. W.P(C) No.10040 of 2011 (Thiruvilwamala Grama Panchayat v. State of Kerala and others) has been filed by the Panchayat in which it is pleaded that t
