By Abhinav Singh Chauhan
Introduction
The Supreme Court, on 18 June 2020, prohibited the procession of the annual Jagannath Rath Yatra in Odisha’s Puri amid the coronavirus pandemic.[1] The said prohibition was an attempt to avoid a mass gathering, spanning lakhs of people—during the festivities of the Rath Yatra, which continues for a period of 10–12 days—in view of public interest and health.[2]
However, several petitions were filed before the apex court for intervention and modification of its order dated 18 June 2020, and for permission to hold the Rath Yatra procession. The court, after reviewing the petitions, gave its assent to hold the Rath Yatra on the condition that during the procession there would be no public attendance.[3] Strangely, earlier, the Rath Yatra was prohibited on the ground that it could not be ensured that there would be no general congregation.[4] While passing the order, the Supreme Court observed that any outbreak of coronavirus because of the Rath Yatra would be disastrous, owing to the presence of a large number of people.[5]
Modification of the Order
One of the major aspects of the order of 22 June, is that it significantly modified the order pronounced by the court on 18 June. Under Article 137 of the Constitution,[6] the Supreme Court has the power to review any of its past judgments or orders. Nevertheless, the court has used this power of judicial review sparingly in the past, with a lot of self-imposed restrictions. The modification of the order by judicial review makes the order particularly notable, as judicial review is sparingly used by the courts.
The Supreme Court reviews or modifies its earlier orders when it is necessary for facilitating justice.[7] While the review proceeding cannot be equated with the original proceedings of the case,[8] the court modifies its order if there is an error apparent on the face of the record,[9] or if the court did not take into consideration a material statutory provision.[10]
In the present case, the court reversed its earlier order, on the basis of a new argument or assurance submitted before it. The reversal of the order did not correct any error in the original order or prevent any miscarriage of justice. The Supreme Court rather, left the decision of conducting the Rath Yatra to the state government, with some conditions to conduct the rath yatra in the case the government chose to proceed with the Rath Yatra processions; and did not safeguard the constitutional rights of the people (which might get violated by the procession).
The conflict between the Right to Health and the Right to Worship
The Supreme Court rightly said in State of Punjab and Ors v. Ram Lubhaya Bagga and Ors that “if health crumbles, it is said everything crumbles” and that the “pith and substance of life is health”.[11]
The lacunae here is that on one hand, the government is closing down religious places to contain the spread of coronavirus,[12] while on the other hand, the same government is arguing in favour of a religious procession, which will involve thousands of people; having the potential to jeopardize the health of millions of people across the nation.[13]
Tablighi Jamaat, a global Muslim missionary movement focuses on encouraging members to practise their religion with basic principles of Islam, for which it organizes events across the globe. One such event, organized in March 2020, in Delhi, was attended by thousands, including some foreigners, who subsequently tested positive for coronavirus.[14]
The Tablighi Jamaat event in India led to a catastrophic outbreak of coronavirus. By 18 April, about 30% of the total cases in India were reported to have connections with the Tablighi Jamaat event.[15] A case was registered against the organizer of the event. All of this was happening when the total number of cases in India was only around 15,000, and the outbreak in India was in its initial stages.
The current processions of the Rath Yatra were approved when more than 15,000 cases are reported daily.[16] According to media reports, one of the servitors also tested positive for coronavirus.[17] Moreover, it has been reported that social distancing norms were allegedly flouted during the processions.[18] The approval of the Rath Yatra was solely based on the assurance of the maintenance of social distancing norms,[19] and that every person involved in the procession should test negative for coronavirus.[20]
Under Article 25 of the Constitution, everyone has a fundamental right to profess and act as per the beliefs and ideologies enjoined or sanctioned by his religion, until and unless the same endanger public health and morality.[21] The fundamental right of religious practice is thus subject to public order, morality, and health, by the very words of the Article itself. The expression “subject to”, in Article 25 is in the nature of a condition or proviso, wherein making a provision subject to another may imply that the former is controlled by or is subordinate to the other[22] and that one cannot infringe the rights of others in exercise of their own under Article 25.[23]
The supreme court observed in the State of Punjab and Ors v. Mohinder Singh Chawla and Ors[24], that the health of the public is not only a proviso under Article 25 but is also interpreted as one of the facets of the right to life under Article 21,[25] deriving its breadth from Article 47 of the Constitution.[26] In recent years, the Supreme Court has derived the obligations of the State to maintain public health from the Directive Principles in the Constitution and has asked states to take measures in consonance with these principles.[27]
It may seem as though there is a conflict between the fundamental right to worship and the fundamental right to health under Article 21, since the right to religious practice is subject to public health, therefore in a conflict between the two, public health should be prioritized[28]. The limitation on religious practices, given the public health, is not only a constitutional norm, but the same is provided under Article 12 of the UDHR[29] and Article 18 of the International Covenant on Civil and Political Rights[30]. Further, Article 25 of the Universal Declaration of Human Rights, provides for the right to a standardized level of living with adequate means for one’s health and well-being. The provision of the right to health in a number of international instruments demonstrates the value of public health.
India, being a welfare state, has a paramount duty to take measures towards seeking a sufficient level of protection to human life and health, as it is a fundamental right.[31] The obligation of the State is not only to restrict the actions which derogate public health but also to promote the maintenance of public health.[32]
Was It Necessary?
The same question of allowing the Rath Yatra arose before the Gujarat High Court in the case of Hiteshkumar Vittalbhai Chavda v. Shri Jagannathji Mandir Trust.[33] The Gujarat High Court prohibited the Rath Yatra, as a preventive measure, given the present condition of the coronavirus pandemic. This was despite assurances from the state government, as given by the Odisha government in the Puri Rath Yatra case. Thus, the Rath Yatra processions in Gujarat were conducted within the temple premises, without any public congregation.
Though it can be argued that the Rath Yatra is an essential practice and that it cannot be restricted, it is still subject to public health.[34] Amid the present conditions, a pragmatic approach was expected by the Supreme Court, given the dire situation in the country.
The actions of government are not only inconsistent with constitutional norms, but also with its own guidelines,[35] issued to contain the spread of the coronavirus. With all religious functions and public congregations being put to a halt,[36] the nod to holding the Rath Yatra procession was certainly a surprise, since the government itself admitted that public congregations cannot be avoided during the Rath Yatra.[37]
The government seems to be retracing its steps in the Tablighi Jamaat fiasco, which became the single largest hotspot for the coronavirus in South Asia.[38] The government by conducting the Rath Yatra processions seems to have forgotten that India has reported over 6 lakh cases of coronavirus,[39] with the number of cases increasing at an alarming rate. With no vaccine for the coronavirus developed yet, one of the ways to contain the spread is by following social distancing norms and thereby avoiding large congregations.[40]
In other countries as well, religious congregations have been innocent but powerful vectors, in spreading the virus. In South Korea, for instance, the congregations at a church accounted for more than 5,000 cases in the country.[41] Not only have these congregations spread the virus but even led to an outbreak in certain cases, as witnessed in New York, where a synagogue became the epicenter of the spread of the virus.[42] Moreover, the Supreme Court, while disposing of the petition of Puri Rath Yatra, acknowledged that in the 18th-19th century, a “yatra” of a similar kind was responsible for the spread of cholera and the Plague like “wildfire”.[43] Therefore, even the well-intentioned and well-arranged religious gatherings have the potential of spreading the coronavirus.
While the Rath Yatra is an essential practice of religion, ensured under Article 25 of the Constitution, the same should not have been allowed on the grounds of the greater good of the public at large, including those who took part in the processions. If at all, the Rath Yatra in Puri could have been conducted in a similar fashion as in Ahmedabad, which ensured the safety of the public, while maintaining the sanctity of the ritual.
Conclusion
The question of going ahead with a religious procession has not arisen for the first time during this pandemic. The government has also allowed for the Amarnath Yatra to be held, with 1,000 pilgrims via helicopter and 500 pilgrims on foot per day.[44] The actions of the government in going ahead with religious processions, endanger the good of the public at large, keeping in mind the current situation, and past incidents which have led to the spread of the virus.
The daily numbers of coronavirus cases in India are only increasing with each passing day,[45] and the government is fueling the same. The moment this fuel catches fire, the already catastrophic conditions will deteriorate further, putting the lives of millions in danger.
With festivals like Bakr-Id, Janmashtami and Ganesh Chaturthi lined up for the coming months, the decisions of the courts and the government celebrations will be significant in impacting the spread of the virus, particularly because people belonging to various faiths will now demand permission by citing the Puri Rath Yatra decision. Needless to say, a logical and well-reasoned approach is expected from the courts and the government, with due consideration to public health concerns with more than 20,000 new coronavirus cases being detected in India daily.[46]
The author, Abhinav Singh Chauhan, is currently a law student at the National Law University, Odisha.
[1] Odisha Vikash Parishad v. Union of India and Ors, Writ Petition (Civil) 571 of 2020 (Supreme Court, 18/06/2020) : [2020] SCC OnLine 519 (SC).
[2] Id.
[3] Odisha Vikash Parishad v Union of India and Ors Writ Petition (Civil) 571 of 2020 (Supreme Court, 22/06/2020) : [2020] SCC OnLine 533 (SC).
[4] Id.
[5] Id.
[6] Art. 137, the Constitution of India.
[7] S. Nagaraj v. State of Karnataka, 1993 Supp(4) SCC 595.
[8] Lily Thomas v. UOI, (2000) 6 SCC 224.
[9] Sheonandan Paswan v. State of Bihar, AIR 1987 SC 877.
[10] Girdhari Lal Gupta v. D.H. Mehta, AIR 1971 SC 2162.
[11] State of Punjab and Ors v. Ram Lubhaya Bagga and Ors, (1998) 4 SCC 117.
[12] Order | Ministry of Home Affairs, Government of India, available at https://www.mha.gov.in/sites/default/files/MHAOrder_29062020.pdf (last visited on July 8, 2020).
[13] Tina Das, Indians who made Covid ‘Muslim virus’ after Tablighi Jamaat are cheering Odisha’s Rath Yatra, June 24, 2020, available at https://theprint.in/opinion/pov/indians-who-made-covid-muslim-virus-after-tablighi-jamaat-are-cheering-odishas-rath-yatra/447717/ (Last visited on July 7, 2020).
[14] Akash Bisht & Sadiq Naqvi , How Tablighi Jamaat event became India’s worst coronavirus vector, April 7, 2020, available at https://www.aljazeera.com/news/2020/04/tablighi-jamaat-event-india-worst-coronavirus-vector-200407052957511.html (Last visited on July 12, 2020).
[15] The Hindu, Coronavirus | Nearly 4,300 cases were linked to Tablighi Jamaat event, says Health Ministry, April 18, 2020, available at https://www.thehindu.com/news/national/coronavirus-nearly-4300-cases-were-linked-to-tablighi-jamaat-event-says-health-ministry/article31376202.ece (Last visited on July 7, 2020).
[16] Worldometers, India Coronavirus Cases, available at https://www.worldometers.info/coronavirus/country/india/, (Last accessed on July 7, 2020).
[17] Outlook, Puri Jagannath Temple Servitor Tests Covid Positive As Rath Yatra Gets Underway, June 23, 2020, available at https://www.outlookindia.com/website/story/india-news-puri-jagannath-temple-servitor-tests-covid-positive-as-rath-yatra-gets-underway/355270 (Last visited on July 7, 2020).
[18] The Quint, Puri Rath Yatra Commences, But Was Social Distancing Followed?, June 24, 2020, available at
https://www.thequint.com/news/india/puri-rath-yatra-2020-holy-trinitys-pahandi-rituals, (Last visited on July 7, 2020).
[19] Odisha Vikash Parishad v Union of India and Ors Writ Petition (Civil) 571 of 2020 (Supreme Court, 22/06/2020) : [2020] SCC OnLine 533 (SC).
[20] Id.
[21] Art. 25, the Constitution of India.
[22] Indian Young Lawyers Association and Ors v. The State of Kerala and Ors, (2019) 11 SCC 1.
[23] Afzal Ansari and Ors. v. State of U.P. and Ors., Public Interest Litigation No. 570 of 2020 (Allahabad High Court 15/05/2020) : MANU/UP/0995/2020.
[24] State of Punjab and Ors v. Mohinder Singh Chawla and Ors, (1997) 2 SCC 83.
[25] State of Punjab and Ors v. Mohinder Singh Chawla and Ors, (1997) 2 SCC 83.
[26] Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors, (1981) 1 SCC 608; Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161; Vincent Panikurlangara v. Union of India and Ors, AIR 1987 SC 990; State of Punjab and Ors v. Ram Lubhaya Bagga and Ors, (1998) 4 SCC 117; State of Karnataka and Ors v. R Vivekananda Swamy and Ors, (2008) 5 SCC 328.
[27] Vincent Panikurlangara v. Union of India and Ors, AIR 1987 SC 990.
[28] Art. 25, the Constitution of India;
[29] Universal Declarations of Human Rights, G.A. Res. 217A, U.N. Doc. A/810 (December12, 1948).
[30] The International Covenant on Civil and Political Rights, December 19, 1966, 99 U.N.T.S. 171.
[31] Centre for Public Interest Litigation v. Union of India and Ors (2013) 16 SCC 279.
[32] Union of India v. Mool Chand Khairati Ram Trust (2018) 8 SCC 321.
[33] Hiteshkumar Vittalbhai Chavda v. Shri Jagannathji Mandir Trust, Writ Petition (PIL) No. 90 of 2020 (Gujarat High Court, 20/06/2020)
[34] Art. 26, the Constitution of India.
[35] Order | Ministry of Home Affairs, Government of India, available at https://www.mha.gov.in/sites/default/files/MHAOrder_29062020.pdf (last visited on July 8, 2020).
[36] Id.
[37] Odisha Vikash Parishad v Union of India and Ors Writ Petition (Civil) 571 of 2020 (Supreme Court, 22/06/2020) : [2020] SCC OnLine 533 (SC).
[38]Snehesh Alex Philip, How Tablighi Jamaat emerged as the ‘largest known’ Covid-19 source in South Asia, March 31, 2020, available at https://theprint.in/india/how-tablighi-jamaat-unknowingly-emerges-as-largest-known-covid-19-source-in-south-asia/391918 (Last Visited on July 15, 2020).
[39] India Coronavirus Cases, Worldometers, available at https://www.worldometers.info/coronavirus/country/india/(Last accessed on July 7, 2020).
[40] Coronavirus disease (COVID-19) advice for the public, World Health Organization, available at
https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public (Last visited on July 8, 2020).
[41] The Washington Post, How a South Korean church helped fuel the spread of the coronavirus, March 25, 2020, available at https://www.washingtonpost.com/graphics/2020/world/coronavirus-south-korea-church (last visited on July 8, 2020.
[42] USA Today, They have been remarkable’: How a New York synagogue is coping as an epicenter of the US coronavirus spread, March 12, 2020, available at
https://www.usatoday.com/story/news/nation/2020/03/12/coronavirus-new-york-synagogue-coping-hotspot/5026107002/ (last visited on July 8, 2020).
[43] Odisha Vikash Parishad v Union of India and Ors Writ Petition (Civil) 571 of 2020 (Supreme Court, 22/06/2020) : [2020] SCC OnLine 533 (SC).
[44] Ravi Krishnan Khajuria, Amarnath Yatra: 1,000 pilgrims on helicopters, 500 on foot to be allowed per day via Baltal track this year, July 7, 2020, available at https://www.hindustantimes.com/india-news/amarnath-yatra-1000-pilgrims-on-helicopters-500-on-foot-to-be-allowed-per-day-via-baltal-track-this-year/story-THuiDktB0jUafuhVax4tSI.html, (Last visited on July 8, 2020).
[45] India Coronavirus Cases, Worldometers, available at https://www.worldometers.info/coronavirus/country/india/(Last accessed on July 7, 2020).
[46] Id.
The Journal of Indian Law and Society 