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Safety restrictions have only been observed in breach in the past: State responds to plea in Bombay HC for re-opening religious places

Iterating that the COVID-19 pandemic necessitated restrictions such as those in place in Maharashtra, it is asserted that the right to worship and other religious rights are subject to the maintenance of public health.

Lydia Suzanne Thomas

The Maharashtra Government has filed an affidavit before the Bombay High Court asserting that reopening places of worship at present may result in an explosion of COVID-19 infections which the Government may not be equipped to handle.

Responding to a plea for the re-opening of religious places with proper safety guidelines, the State has also contended that a COVID-19 infection-explosion can be avoided, "if the responsible citizens avoid making unreasonable demands, such as the one which is made in the present petition.

The Bench of Justices AA Sayed and SP Tavade has been hearing the matter, which is due to come up for further hearing next week (Association for Aiding Justice v. State of Maharashtra).

In a spirited response, the Secretary for Disaster Management, Relief and Rehabilitation has stated that people would not follow COVID-19 guidelines even if the same were framed.

The State's affidavit highlights:

  • There is no guarantee that the citizens will abide by the guidelines that may be issued by the State;

  • The experience of the State Government and its machinery in the past demonstrates that such restrictions and conditions are observed only in breach, in view of similar experiences in the opening of vegetable markets and relaxations during the Ganesh festival;

  • It is next to impossible to monitor the strict observance of such conditions.

Citing the State’s experience with handling the Ganesh Chaturthi festival and the reopening of markets, Secretary Kishor Raje Nimbalkar’s affidavit in the Court narrates:

"It was expected from the citizens to follow the said guidelines in its true letter and spirit, as in the present pandemic situation it is corresponding duty and responsibility of the citizens to co-operate with the State Government. However, at many places the citizens appeared to be more casual than responsible."

Referring to the “mad rush” at the beginning of the festival to buy items to decorate houses, the affidavit states that there was a completely avoidable sea of public at marketplaces, which is evident from a cursory look at the video coverage in news channels.

"The public had simply forgotten about social distancing norms. Majority of the public was seen simply without face-masks, with the remains wearing it most inappropriately", the affidavit states.

The Secretary has also appended snapshots from several locations in Pune and Maharashtra to buttress this point.

Iterating that the COVID-19 pandemic necessitated restrictions such as those in place in Maharashtra, the Secretary highlights that the right to worship and exercise of other fundamental rights, including religious rights, is subject to the maintenance of public health.

Specifying that Maharashtra had the highest number of COVID-19 cases in the country on September 6, 2020, the Secretary describes the decision to keep places of worship closed a “conscious policy decision”.

In another illustration from the Ganapati festival, the State’s affidavit recites that out of 40 people in an apartment complex, 32 tested COVID positive after coming in contact with a resident who was COVID positive. The spread of COVID-19 in the Tirupati Temple has also been referenced in the affidavit.

“It is beyond imagination - the situation that would follow if all religious places are allowed to open.”
Secretary, Disaster Management, Relief and Rehabilitation

Notably, the affidavit has distinguished the orders passed by the Supreme Court in to allow the limited opening of Jain temples during Paryushan and the permission granted by the Bombay High Court to the Parsis to mark their annual prayer day at Doongerwadi. In neither of these petitions was permission sought for prayers to be conducted in congregations, the affidavit points out.

Representations similar to the petition at hand were rejected by the Court in respect of Muharram and Farvardin Roj, it is recounted.

Stating that the petitioner has made his prayers in a “casual manner” the State also speaks of the need to distinguish the reopening of commercial establishments and the restart of businesses from the reopening of religious places of worship. The former was necessary for the strengthening of the economy.

"The economy of the country had come to a grinding halt. In furtherance of the object to revive the economy gradually, the decision to re-open malls, market places, barbershops, saloons, liquor shops etc. in a phased manner has been taken by the Central as well as State Government, of course with stipulated regulations. There cannot be any comparison of the above action of the State Government with the action of not allowing people to visit the places of worship to offer prayers and/or to perform rituals", the affidavit states.

“…in the entire petition the Petitioner has not even bothered to state as to which fundamental right of the Petitioner is affected by not opening the religious places.”
the State's affidavit adds.

Allowing places of worship to reopen is not practically feasible in light of the government’s previous attempts at relaxing norms, it has been emphasised. Any further attempt in this regard would burden the already overburdened State machinery further, it has been averred.

On these grounds, the petition ought to be dismissed, the affidavit opines.

The petition is expected to be taken up for hearing next week.

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