The SC Ruling On 2020 Rath Yatra: Indicative Of The Juggernaut Conundrum Of Selective Judicial Evasion?

By Philip Oommen

 

Introduction

On 18th June 2020, the Hon’ble Supreme Court of India stayed the Rath Yatra at the Jagannath Temple in Puri stating that ‘Lord Jagannath will not forgive us if we allow this’,[1] indicating the health hazards involved in conducting the yatra amidst the Covid-19 Pandemic. However, on 22nd June, just four days after the staying of the yatra, the apex court took a U-turn, by allowing the rath yatra and imposed certain restrictions to avoid the eventuality of a Covid-19 outbreak.[2] The restrictions involved prohibitions in terms of the number of participants allowed, the city-wide curfews and the mandatory prior-testing of all persons involved.[3] The total participation is expected to be around One Thousand Five Hundred, owing to the limit of five hundred individuals per chariot.[4] As India ventures into the list of top 3 countries in terms of number of Covid-19 cases,[5] it is imperative to analyze the legality of the conduct of rath yatra amidst the worst crisis since World War II[6].

 

Article 25 Versus the Limitations

The right to freedom of religion is a Fundamental Right guaranteed under Article 25 of the Indian Constitution, subject to Public Order, Morality and Health, and to other provisions of Part III of the Indian Constitution.

  • Public Order And Health

In an organized society, absolute rights cannot exist as the enjoyment of one’s rights ought to be consistent with those of others.[7] In Gulam Abbas v. State of UP[8], despite the Shariat Law explicitly proscribing the shifting of graves, it was allowed in the interest of public order as the right to freedom of religion is not absolute. Also, the use of amplifiers in religious activities was restricted on account of the threat to Public Health owing to the noise pollution so caused.[9]

  • Other Provisions Of Part III

The phrase “other provisions of this part” as found in Article 25(1) is unique to the Indian Constitution. The American Constitution, which is an important source for the Indian Constitution, absolutely protects the right to free exercise of religion.[10] Justice D.Y Chandrachud, while comparing the scope of Articles 26 and 25, emphasized upon the subordination of Article 25 to all other freedoms guaranteed under Part III of the Indian Constitution.[11] This implies that the Constitution framers envisaged the right to freedom of religion under article 25 to be subservient to the other rights (including rights under Articles 21 and 19) guaranteed under Part III.

 

The Rath Yatra:  A Saga Of Limitations

The conduct of rath yatra, which shall involve the participation of over a thousand individuals at a time when the threat of Covid-19 looms large, might violate several fundamental rights guaranteed under Part III. Articles 19 and 21 being the prominent ones that may be violated for enforcing the right to freedom of religion under Article 25. Further, A positive obligation is cast upon the state to protect the fundamental freedoms and rights of all individuals.[12] The Rath Yatra is being conducted at the expense of public health and not to mention the violation of fundamental rights as a consequence.

  • Violation Of Article 21: Right To Life

Covid-19 has brought about an unprecedented daunting health crisis which has resulted in the collapse of the state machinery. The state has a positive obligation to take all necessary steps for safeguarding the fundamental rights of individuals and the policymakers cannot turn a blind eye to the constitutional wisdom and values.[13] Right to Health is an important facet of Right to Life[14] and a duty is imposed upon the welfare state to ensure its implementation.[15] Though the jurisprudence relating to Right to Health is limited,[16] it is argued that the Rath Yatra violates the right as infected people possessing false negative diagnosis reports (owing to early testing) can potentially spread the virus.[17] Thus, the reliance being placed by the apex court on prior testing of the individuals for allowing mass-events is a dangerous precedent. Additionally, the threat posed by the virus has increased manifold owing to the newly revealed airborne nature of Covid-19,[18] which in effect would necessitate the adoption of enhanced precautionary measures. Also, the apex court observed that ‘in the 18th-19th century a yatra of this kind was responsible for the spread of cholera and plague “like wildfire”’[19]. As George Santayana once said “those who cannot learn from the past are doomed to repeat it”,[20] the apex court, despite being aware of the happenings of the past, appears to have erred, thereby, endangering the general populace by letting down the guard when the most efficacious precautions were called for. Considering the exponential growth in the Covid-19 death toll[21] coupled with the flouting of the social distancing norms at the rath yatra[22], the state has violated the right to health under Article 21, in complete ignorance of its positive obligation to preserve the right.

  • Violation Of Article 19 (1) (D): Right To Freedom Of Movement

To avoid an outbreak as a consequence of the rath yatra, the apex court ordered[23] the enforcement of ‘curfew in the city of Puri on all days and during all the time Rath Yatra chariots are taken in procession’ and further stated that the ‘no one would be allowed to come out of their houses’. Additionally, the state government was authorized to impose curfew ‘on such days and during such time as deemed necessary’. Under Article 19(5),[24] reasonable restrictions may be imposed on freedom of movement is in the interests of the general public. Here, it is doubtful that the curfew imposed over the city of Puri is in the interests of the general public, as the very need for such a curfew could have been avoided, had the apex court not reversed its earlier order.

 

Right To Freedom Of Religion During The COVID Pandemic: An Antithesis Of Article 25

Article 25(1) envisages a higher pedestal for other fundamental rights under Part III in comparison to that of the right to freedom of religion. As Justice Chandrachud pointed out if a provision is made subject to another then that indicates the control or subordination of the former by the latter.[25] Thus, it is argued that the very existence of the right to freedom of religion is contingent upon the same being in consonance with other rights guaranteed under Part III. Hence, it is submitted that Article 25 confers no right to freedom of religion if granting the same is inconsistent with other fundamental rights. Further, allowing rath yatra for enforcing the right to freedom of religion in blatant disregard for rights under Articles 19 and 21 is a violation of Article 25 in itself.

 

The Question Of Balancing: Article 25 vis-a-vis Articles 19 & 21

Courts have devised the doctrine of balancing to find a middle way in case of a conflict between fundamental rights of equal weight.[26] However, it is argued that the doctrine of balancing is inapplicable in the case of rath yatra, owing to the subservient position attributed to the right to freedom of religion. Hence, no question of balancing arises.

 

Article 26: A Similar Narrative

Though the apex court, while allowing rath yatra, did not consider the question involving rights under Article 26,[27] this aspect shall be analyzed for the sake of clarity. It is submitted that the question of whether the Jagannath Temple constitutes a ‘religious denomination or any section thereof’[28] is undecided,[29] which is the sine qua non for claiming rights under Article 26.

Alternatively, as per Article 26, the right thereunder is subject to public health. Unlike Article 25, Article 26 is not subject to “other provisions of Part III”, however, the fundamental rights cannot exist in watertight compartments and must exist in harmony.[30] Therefore, it is submitted that Article 26 must be balanced with the right to health under Article 21 and the latter must add on to the ‘public health’ limitation contained within Article 26. Hence, the right to health, coupled with the public health limitation, mandates that the right under Article 26 should not be enforced by jeopardizing Right to Life.

 

Judicial Evasion: Reverberation Of A Majoritarian Proclivity?

With great respect, it is submitted that the sheer inability of the apex court to consider the violations of rights guaranteed under Articles 21 and 19, followed by the abrupt reversal of the earlier order has resulted in an unprecedented, nay dangerous situation.

In the past, the Hon’ble Supreme Court has stepped in and acted on the day-to-day matters pertaining to the enforcement of the constitutional values. Notable examples being those of the Vishaka Guidelines[31] and the NJAC case[32]. Of late, the apex court has been inconsistent in enforcing the constitutional values, especially in issues affecting the stature of the majoritarian Indian Government. The controversial electoral bonds scheme, as brought in by the Finance Act in 2017, legalizes limitless anonymous political donations and despite the red flags raised by the RBI and the CBI, the apex court passed an interim order[33] refusing to act and this order was cited as the reason for denying a stay in January 2020[34]. Similarly, when the issue of CAA protests came up, the apex court refused to intervene stating that violence must stop, despite the lawyers bringing the attention of the apex court to the possibility of violence being engineered and blamed on students.[35] Furthermore, the court’s refusal to grant a stay on the CAA[36] has been subjected to criticism[37]. The Bhima Koregaon issue is a perfect case exhibiting the said pattern, as the apex court refused to intervene in the arrests of the accused activists[38] but intervened and reversed the Delhi High Court Order against the NIA’s ‘unseemly haste’ to remove Mr. Navlakha from the jurisdiction of the Delhi High Court[39].

 

Judicial Activism: A Metonym For Selective Judicial Evasion?

As conveyed through the Bhima Koregaon case-in-point, judicial activism for the Hon’ble Supreme Court of India is not a thing of the past, instead, it is respectfully argued that activism still runs very much in the blood of the court, though perhaps selectively. Further, it is submitted that the prospect of judicial activism being used for forwarding the majoritarian notions exists. In the Ram Mandir case,[40] the apex court, despite recognizing the forced dispossession of Muslims, may have failed to hold the same against the claims of Hindus, as the absence of possession ultimately paved way for the unanimous decision upholding the majoritarian interests.[41] On the contrary, the US Supreme Court in Brown v. Board of Education[42] took a stand against the flawed popular notion of ‘separate but equal’. In Anuradha Bhasin v. Union of India,[43] despite recognizing the right to internet as a constitutionally protected right, the apex court did not pass any reliefs enforcing the said right in Kashmir, instead, the court chose to constitute a review committee under the relevant rules[44] consisting of representatives from the very government against which the constitutional right was sought to be enforced, thereby, violating the principle of natural justice Nemo Judex In Cause Sua. Even in the migrants’ deaths issue, when Central Government took flak for its failure,[45] the Supreme Court had at first refused to entertain the plea by stating ‘how can we stop them from walking[46] and subsequently took a U-turn by taking suo motu cognizance of the issue[47] after several High Courts passed orders in this regard.[48]

 

Conclusion

As Lord Acton once said, ‘the one pervading evil of democracy is the tyranny of the majority’,[49] the possibility of democracy becoming a rule by the majority cannot be disregarded. However, the Judiciary, being unelected and politically independent, is the sole protector of the constitutional values against the majoritarian proclivities in a democracy. One may ask, what changed in a duration of four days, which prompted the reversal of the decision concerning the rath yatra? The answer can be found in the order of the Supreme Court,[50] which states that an affidavit was filed by the Government of Orissa stating the possibility of conducting the rath yatra under certain restrictions, as opposed to the neutral stance of the government earlier. Further, the apex court relied upon the ‘good record’ of the state of Orissa in tackling the Covid-19 Pandemic. However, the apex court seems to have forgotten how swiftly the ‘success model’ of Singapore crumbled owing to a lack of effective restrictions.[51] Hence, care should have been exercised to help maintain the status quo in Orissa.

While the urgency is understandable that as per traditions, Lord Jagannath cannot come out for the forthcoming 12 years if rath yatra is not held on 23rd June,[52] the same cannot be used to justify the invoking of the right under Article 25 and in turn, endanger countless lives during the Covid-19 pandemic. Here, the Supreme Court had a constitutional duty to uphold the rights to life and freedom of movement over the right to freedom of religion, however, the court may have erred and instead upheld the majoritarian notions. On that note, Justice Kurian Joseph elaborating upon majoritarianism said “The Court is always anti-majoritarian because first duty is to uphold the Constitutional values. A judge is appointed only to stay true to Constitutional values. They must disassociate themselves from their subjectivity and that is how they become counter-majoritarian”.[53]

 

The author, Philip Oommen, is currently a law student at the Rajiv Gandhi National University Of Law, Patiala, Punjab.

 

[1] Odisha Vikash Parishad v. Union Of India, 2020 SCC OnLine SC 519, available at https://www.livelaw.in/pdf_upload/pdf_upload-376668.pdf, last seen on 10/07/2020.

[2] Odisha Vikash Parishad v. Union Of India, 2020 SCC OnLine SC 533, available at https://www.livelaw.in/pdf_upload/pdf_upload-376844.pdf, last seen on 10/07/2020.

[3] Ibid.

[4] Ibid.

[5] Coronavirus | India overtakes Russia to become country with third highest confirmed cases, The Hindu (05/07/2020), available at https://www.thehindu.com/news/national/coronavirus-india-overtakes-russia-to-become-country-with-third-highest-confirmed-cases/article31995125.ece, last seen on 10/07/2020.

[6]COVID-19 worst crisis since World War II, says U.N. Chief, The Hindu (01/04/2020), available at https://www.thehindu.com/news/international/covid-19-worst-crisis-since-world-war-ii-says-un-chief/article31223646.ece, last seen on 08/07/2020.

[7]Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj v. State of Gujarat, (1975) 1 SCC 11 (para 30).

[8] Gulam Abbas v. State of UP, (1984) 1 SCC 81 (para 6).

[9] Church Of God (Full Gospel) In India v. K.K.R. Majestic Colony Welfare Association, (2000) 7 SCC 282 (para 13).

[10] U.S. Constitution, Amendment I.

[11] Indian Young Lawyers Association v. State Of Kerala, (2019) 11 SCC 1 (para 216).

[12] Tehseen S. Poonawalla v. Union Of India, (2018) 9 SCC 501 (para 23).

[13]Nandini Sundar v. State Of Chhattisgarh, (2011) 7 SCC 547 (paras 21, 52).

[14] Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42 (para 24).

[15] Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 SCC 37 (para 9).

[16] R. bajaj, Can the Judiciary Invoke Right to Health to Demand a More Vigorous Response to COVID-19?, The Wire (31/03/2020), available at https://thewire.in/law/can-the-judiciary-invoke-right-to-health-to-demand-a-more-vigorous-response-to-covid-19, last seen on 23/07/2020.

[17]Testing infected people too early for Covid-19 may yield false negative diagnosis, shows study, The Economic Times (11/06/2020), available at https://economictimes.indiatimes.com/magazines/panache/testing-infected-people-too-early-for-covid-19-may-yield-false-negative-diagnosis-shows-study/articleshow/76319083.cms?from=mdr, last seen on 23/07/2020; S. Dey, Delhi: 15% of symptomatic cases gave false negative in first antigen test, The Times Of India (22/07/2020), available at https://timesofindia.indiatimes.com/city/delhi/15-of-symptomatic-cases-gave-false-ve-in-first-antigen-test/articleshow/77096247.cms, last seen on 23/07/2020.

[18] V. Mohan, Airborne transmission of Covid possible, wear masks in enclosed spaces: CSIR, The Times Of India (21/07/2020), available at https://timesofindia.indiatimes.com/india/airborne-spread-is-a-possibility-use-masks-says-csir-chief/articleshow/77075867.cms, last seen on 22/03/2020.

[19] Supra 2.

[20] George Santayana, The Life of Reason, 279 (2005), available at http://www.gutenberg.org/files/15000/15000-h/15000-h.htm#vol1CHAPTER_XII_FLUX_AND_CONSTANCY_IN_HUMAN_NATURE, last seen on 22/07/2020.

[21]M. Ray, India’s Covid-19 tally at 1,192,915, death toll over 28,700, The Hindustan Times (22/07/2020), available at https://www.hindustantimes.com/india-news/india-s-covid-19-tally-nears-2-million-mark-death-toll-at-28-732/story-QTFX4cQn60n03nvwjd69aL.html, last seen on 23/07/2020.

[22]Odisha: Jagannath Rath Yatra attendees flout social distancing norms in Puri, The Economic Times (05/07/2020), available at https://economictimes.indiatimes.com/news/politics-and-nation/odisha-jagannath-rath-yatra-attendees-flout-social-distancing-norms-in-puri/videoshow/76792984.cms?from=mdr, last seen on 22/07/2020.

[23] Supra 2.

[24] Art. 19, the Constitution of India.

[25] Supra 11.

[26] Sahara India Real Estate Corporation Ltd v. SEBI, (2012) 10 SCC 603 (para 42).

[27] V. Venkatesan, SC Explains Why It Changed Its Mind on Rath Yatra Despite COVID-19 Fears, The Wire (22/06/2020), available at https://thewire.in/law/sc-decision-rath-yatra-covid-19, last seen on 22/07/2020.

[28] Art. 26, the Constitution of India.

[29]Raja Bira Kishore Deb v. State of Orissa, (1964) 7 SCR 32 (para 11)

[30] Supra 11 (para 217).

[31] Vishaka v. State Of Rajasthan, (1997) 6 SCC 241.

[32] Supreme Court Advocates-On-Record Association v. Union Of India, (2016) 5 SCC 1.

[33] Association for Democratic Reforms  v. Union of India, W.P. (civil) 333/2015 (Supreme Court, 12/04/2019), available at https://drive.google.com/viewerng/viewer?url=https://www.livelaw.in/pdf_upload/pdf_upload-359920.pdf, last seen on 06/07/2020.

[34]K. Rajagopal, Won’t stay electoral bonds scheme even now: CJI, The Hindu (20/01/2020), available at https://www.thehindu.com/news/national/supreme-court-declines-stay-on-electoral-bonds-scheme/article30605530.ece, last seen on 10/07/2020.

[35] Protests against CAA: SC takes serious note of violence, says it must stop immediately, The Economic Times (16/12/2019), available at https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-to-hear-pleas-alleging-police-atrocities-on-students-protesting-against-caa/articleshow/72739187.cms, last seen on 06/07/2020.

[36][Breaking] SC issues notice in all 60 Petitions challenging Citizenship Amendment Act, No Stay, Bar And Bench (19/12/2019), available at https://www.barandbench.com/news/breaking-sc-issues-notice-in-all-60-petitions-challenging-citizenship-amendment-act-no-stay, last seen on 05/07/2020.

[37]D. Dave, CAA Protests: The Supreme Court has not acted with urgency to protect citizens from Executive excesses, Bar And Bench (24/12/2019), available at https://www.barandbench.com/columns/litigation-columns/caa-protests-the-supreme-court-has-not-acted-with-urgency-to-protect-citizens-from-executive-excesses, last seen on 07/07/2020.

[38]S. Rautray, Bhima-Koregaon case: Supreme Court refuses to interfere with arrests of five activists, The Economic Times (28/09/2018), available at https://economictimes.indiatimes.com/news/politics-and-nation/koregaon-bhima-case-sc-refuses-to-interfere-with-arrests-of-five-activists/articleshow/65990909.cms?from=mdr, last seen on 09/07/2020.

[39]R. Roy, [Breaking] Bhima Koregaon : SC Sets Aside Delhi HC Order Calling For NIA Records Of Gautam Navlakha’s Transfer To Mumbai; Expunges Remarks, Live Law (06/07/2020), available at https://www.livelaw.in/top-stories/bhima-koregaon-sc-sets-aside-delhi-hc-order-calling-for-nia-records-of-gautam-navlakhas-transfer-to-mumbai-expunges-remarks-159434, last seen on 05/07/2020.

[40]M. Siddiq v. Mahant Suresh Das, (2020) 1 SCC 1.

[41]S. Parthasarathy, G. Bhatia, Peace bought by an unequal compromise, The Hindu (15/11/2019), available at https://www.thehindu.com/opinion/lead/peace-bought-by-an-unequal-compromise/article29975254.ece, last seen on 01/07/2020.

[42] Brown v. Board of Education, 1954 SCC OnLine US SC 44.

[43] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.

[44] Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.

[45]K. Sibal, Long walk home, The Telegraph Online (01/06/2020), available at https://www.telegraphindia.com/opinion/coronavirus-the-central-government-has-failed-india-migrant-workers-during-covid-19-lockdown/cid/1777646, last seen on 06/07/2020.

[46]R. Roy, ‘How Can We Stop Them From Walking?’ : SC Refuses To Entertain Plea For Migrants On Road, Live Law (15/05/2020), available at https://www.livelaw.in/top-stories/sc-refuses-to-entertain-plea-for-migrants-on-road-156803, last seen on 10/07/2020.

[47]K. Rajagopal, Supreme Court orders Centre and States to immediately provide transport, food and shelter free of cost to stranded migrant workers, The Hindu (26/05/2020), available at https://www.thehindu.com/news/national/supreme-court-takes-suo-motu-cognisance-of-migrant-workers-issue/article31679389.ece, last seen on 10/07/2020.

[48] A. Mandhani, SC can’t ‘monitor’ walking migrants, but 12 HCs have issued orders on food and shelter, The Print (18/05/2020), available at https://theprint.in/judiciary/sc-cant-monitor-walking-migrants-but-12-hcs-have-issued-orders-on-food-and-shelter/424241/, last seen on 06/07/2020.

[49] G. P. Gooch, Reviewed Work: “The History of Freedom” and Other Essays by John Emerich Edward Dalberg Acton, 4 Foreign Affairs 629, 638 (1947), available at https://www.jstor.org/stable/20030069?seq=1, last seen on 22/07/2020.

[50] Supra 2.

[51]N. Bhandare, Singapore’s Coronavirus Success Story Hits a Snag, Foreign Policy (21/04/2020), available at https://foreignpolicy.com/2020/04/21/singapore-coronavirus-response-snag/, last seen on 02/07/2020.

[52]If Lord Jagannath doesn’t come out tomorrow, he can’t for 12 years’, Telangana Today (22/06/2020), available at, last seen on 10/07/2020.

[53]R. Roy, Constitutional Values Not The Same As Majoritarian Views: Justice Kurian Joseph, Live Law (08/07/2020), available at https://www.livelaw.in/top-stories/constitutional-values-not-the-same-as-majoritarian-views-justice-kurian-joseph-159588, last seen on 10/07/2020.

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