The second wave of COVID in India has coincided, rather inauspiciously, with the holy month of Ramzan as well as the Haridwar Kumbh Mela. For a deeply religious society such as ours, this has led to the bitter realisation that communal self-expression is – for better or for worse – bounded by the secular norms of public health and safety. As the Bombay high court noted earlier this week:
“While religious sentiments of all sections of the society must be respected, the right to life and health of the public at large cannot be sacrificed at the altar of a right to celebrate a festival, however significant it may be for a particular community.”
The petitioner was demanding that Muslims be allowed to pray five times a day at a particular mosque in Bombay on the assurance that all COVID-related protocols would be duly followed. It argued that the mosque could, on a normal day, accommodate 7,000 people and was therefore ‘spacious’ enough to deal with the challenge. But the Bombay high court rejected the petition, stating that the demands “cannot be considered in view of the ongoing critical COVID situation which is serious in nature”.
This Thursday, as cases continued to climb, the Delhi high court permitted only 50 devotees to pray at Masjid Bangley Wali at Nizamuddin. In doing so, it faithfully reproduced the ‘standard operating procedures (SOPs) on preventive measures to contain the spread of COVID-19 in religious places/places of worship’ set out by the Central government. These guidelines are quite detailed and contain – apart from the standard protocols of distancing, sanitisation, and screening – provisions pertaining specifically to religious places.
For instance, they pay close attention to the cleanliness of community kitchens and ‘foot-washing stations’. They also prohibit the use of common prayer mats and the distribution of physical offerings such as prasad, or the sprinkling of holy water.
The two orders seem, at first glance, to demonstrate contrasting judicial approaches to the question of religious freedom and public safety. One could argue that the Delhi high court order leans towards the former while the Bombay high court order towards the latter. But would this be an adequate characterisation? Are they as divergent as they appear? How shall we assess the Bombay high court’s claim that right to life and health of public should trump a community’s right to celebrate its festivals? Perhaps the answer lies in invoking a third judicial order, not dissimilar from these two.
Late last month, the Uttarakhand high court ordered that the organisation of the ‘Kumbh Mela’ at Haridwar needed to be closely monitored. Clearly, the court foresaw that the religious congregation could turn into “a breeding ground for the spread of COVID-19 pandemic”, unless local officials and volunteers ensured that the SOPs were closely followed.
Surprisingly, however, while recognising the woeful inadequacy of the preparations (no sanitisers, no thermal screening, no kiosks for doctors and nurses, 132 ambulances for over ten lakh devotees, to name a few) the court did not even consider the judicial possibility that the ‘mela’ could be called off.
Fast forward to the present: a top seer at Haridwar has died from COVID, more than 2,000 positive cases have been recorded, major akharas have started backing out from the congregation, and there is a looming anxiety that the ‘mela’ could already have become a super-spreader event. Even Prime Minister Narendra Modi tweeted on Saturday, appealing to devotees that the ‘Kumbh Mela’ should now only be symbolic, so as to strengthen the fight against COVID.
In light of all this, what becomes of the Uttarakhand high court’s foresight that “we are again entering the phase where the country will face the COVID-19 pandemic”? What of its pious calls to senior civil servants to ‘inspire and motivate’ the administration ‘to complete much of the remaining work’? What of the prediction that “about ten lakh people will reach Haridwar on regular Kumbh Mela days and about 50 lakh people are expected on special days”?
Despite this factual clarity as well as multiple reports about the inadequacy of facilities, there is not a single hint in the order that the mela could potentially be cancelled. Instead, there are well-intentioned directives about the need to improve the condition of roads, shelters and medical facilities, increase police deployment, prepare for the possibility of voyeuristic men lingering about the women’s bathing ghats, and so on.
The assumption that the central activity – bathing in the holy Ganges – must go on uninterrupted, is not once called into question, either by the petitioners or by the judges. It is possible to defend the court, from a somewhat technical perspective, by arguing that it was merely following the letter and spirit of central government’s circular dated January 22, 2021 – SOP “on preventive measures to contain the spread of COVID-19 during Kumbh Mela, Haridwar 2021”. But of course, high courts in our system are far from bound by executive circulars, not in the least while exercising their writ jurisdictions.
The restricted realm of judicial possibilities
All of which presents a curious, if not comic, state of affairs: in one part of our nation, ‘sprinkling holy water’ is prohibited inside religious places and the number of devotees is restricted to 50; while in another, ten to 50 lakh people are permitted to bathe together in a holy river. One may wish to justify this disparity by quibbling over the different factual situations in various states. But would that be convincing in light of the facts on record? Fifty versus fifty lakh! Sprinkling versus bathing! These are surely two different legal regimes which cannot be brought together in one polity without absurdity.
The juxtaposition we wish to foreground must now be apparent. The Bombay high court and the Delhi high court orders are to be contrasted – not with each other – but against the Uttarakhand high court order on the Kumbh Mela. It is clear from their very construction that the former recognises the key judicial question involved, i.e. should religious gatherings, of any persuasion, be permitted given the pandemic. And, subsequently, what administrative measures are necessary to ensure that the concerned safety protocols are met.
The Uttarakhand high court order is remarkable for not even asking the first question, and remaining firmly within the realm of the second. To be sure, when the matter was first brought to the attention of the court on January 13, 2021, the Central SOP dated January 22, 2021 regarding the Kumbh Mela did not even exist! Surely, on the hearing dated January 13, 2021, it should have wondered whether the mela needed to happen in the first place. Its eventual response to this question could have gone either way, determined by the ‘wave’ of developing facts. But by not even asking it, the Uttarakhand high court has doubtless made itself (at least partly) responsible for the current impasse at Haridwar. By restricting the realm of the juridically ‘possible’, it did little more than shut its eyes to the factually ‘foreseeable’.
Purushottam Anand teaches law at IFIM Law School, Bengaluru and Anshuman Singh teaches law at Azim Premji University, Bengaluru. Views expressed are personal.