The conflict between public health and individual liberty is incessant, yet few legal scholars could have predicted and fewer still can justify the failure of the judiciary to halt the juggernaut of Lord Jagannath, and very worryingly, possibly even the Coronavirus.
On June 22, a Bench headed by the Chief Justice of India reversed its earlier decision of prohibiting the annual Jagannath Puri Rath Yatra in Odisha. Whereas earlier, the Court had extolled the epidemiological necessity of curtailing mass gatherings notwithstanding their religious significance, later without any clear legal reasoning, it chose to permit the annual festivity, albeit with certain restrictions.
Ominously, not only is such reversal perceptibly arbitrary, but the Court’s brusque order lacks judicial discussion and creates worrying precedents for the rights discourse and constitutional adjudication in India.
The first judicial order delivered on June 18, implicitly restated a well-established legal principle, that the right to freely profess and propagate one’s religion is subject to larger public health and collective safety. This restriction is recognized within Article 25, which confirms the right to freely profess one’s religion. Indeed, there are and can be no absolute rights. In fact, many a time, such restrictions are necessary to both achieve Constitutional ends and to bolster different rights of others. In this case, for example, the enforcement of the right of religious freedom of some, guaranteed by Article 25 could endanger the right to life and health of others which too is simultaneously guaranteed by Article 21.
It is the role of the judiciary to balance such competing interests and establish a discernible standard of religious freedom against which other religious denominations can seek parity. Through a catena of judgments, the position of the law is that religious freedom of some cannot include an unreasonable violation of rights of others.
This was recently reaffirmed by the Allahabad High Court which allowed the recitation of Azaan, but upheld the ban on the use of loudspeakers for the same. An obvious question arises that ought it not be impermissible for one religious denomination to indulge in mass gatherings which could increase the spread of a dangerous virus and consequently detriment the life of many others? Further counterintuitively, in seeking to manage (but ostensibly not “micro manage”) the Rath Yatra by imposing a multiple-day curfew in Puri and curtailing transport has the Court not impermissibly distributed the burden of religious activities indiscriminately amongst both disciples of Lord Jagannath and non-adherents alike?
And in addition to endangering the lives and health of the general populace, has the Court not displayed a unilateral commitment to religious rights, even at the cost of freedom of movement of many? Notwithstanding the impact of the order, the Court has peremptorily apportioned guilt of any possible outbreak by noting that the organizing Committee of the Puri Jagannath Temple administration would be responsible for adhering to the Court’s guidelines.
The difficulty in applying this decision to future adjudication in a fair manner is further exaggerated as the Supreme Court failed to either explicitly identify the rights it was engaging with, or to lay down perceptible standards to resolve future rights-conflicts. Due to this ambiguity, there is a possibility that those who have greater access to judicial counsel and fora would be able to unilaterally enforce their rights at the cost of the weak and downtrodden.
Furthermore, although the lack of detailed reasons is condonable given the paucity of time and the limitations of hearings over video conferencing, the sudden reversal of its order calls into question the finality of orders of the final Court of this country. The decision of the Supreme Court is unappealable. Once determined, a case cannot be reopened, save to correct patent errors or account for changed circumstances.
In our opinion, neither of these conditions existed in the present case. Instead, what seems to have changed over the course of four days is the insistence of the Union of India led by the learned Solicitor General and the earlier-neutral stance adopted by the State of Odisha. But, changing conclusions on the basis of changed stances of parties in adversarial litigation is very likely myopic. It augments delay and undermines the public trust in the judiciary. Additionally, it incentivises dominant parties to bench-hunt and reagitate lost battles per convenience.
Amongst all this gloom, however, the decision of the Gujarat High Court serves as a lodestar to similar disputes. Although the High Court deftly distinguished the applicability of the Puri Rath Yatra judgment to a demand for allowing a similar Rath Yatra in Gujarat by highlighting a difference in severity of the Coronavirus between the two locations, the crux of its order lies in its prioritisation of Article 21 over Article 25, in line with our Constitutional scheme.
As Bakr-Eid and Ganesh Chaturthi approach, only time will tell if the Court would similarly permit public gatherings and uphold religious liberty of other non-dominant denominations depending on the severity of the Coronavirus outbreak in each locality. For if such a process is not undertaken, then it would be a far more egregious violation of the right to equality and equal protection of the laws enshrined in Article 14.
Curiously, such alacrity in protecting religious freedoms of some is in sharp contrast with the passivity the Court has displayed in protecting the occupational and physiological needs of India’s poor migrants. It can only be hoped that the Court “temper[s] its doctrinaire logic with a little practical wisdom”, for otherwise, it would be unable to stop the juggernaut of the Coronavirus.
The authors are alumni of the National Law School of India University, Bangalore and Advocates at the High Courts of Delhi & Bombay respectively.
Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Bar & Bench.