July 23, 2021 8:00:38 pm
The Kumbh Mela, with its teeming devotees, has come and gone. Sins washed away in the holy Ganges. The Kanwar Yatra, Krishna Jayanti, Ganesh Chaturthi, Dussehra, Muharram, are around the corner, when lakhs throng outdoors, in devotional mode. Sabarimala has opened. Diwali and Christmas could add to the festive crowds. The constitutional right to practice one’s religion, enjoyed in full force, and in public view.
So what’s the fuss? The Indian Constitution protects and guarantees religious freedom as a fundamental right; and organising and holding the Kumbh, and other spiritual events, would come directly under the protective umbrella of Article 25.
However, there is a virus at large, and large assemblies (religious, electoral, etc) are the last thing we need right now. In permitting religious and other gatherings during the pandemic, the State unmistakably violates the Constitution. In particular, Article 21 (the right to life), Article 47 (State’s primary duty to improve public health) – and, it infringes Article 25 (the right to practice religion). It’s important to note that there is a caveat to Article 25, and a strikingly significant one at that, in the context of protecting public health.
Covid-19 spreads exponentially and rapidly. The virus thrives in crowds. One infected person can infect 406 people in 30 days if there is no physical distancing (Indian Council of Medical Research).
The Indian state, instead of completely forbidding outdoor religious activities, actually permits these on occasion, under the guise of spiritual freedom. Even one such assembly can be disastrous.
Take the Kumbh Mela. Ordinarily, the Kumbh is a vivid scene of exceptional human faith and organisational skills. But this year, in April, the swarming Ganges was a spectacle of horror, and dread. Multitudes of devotees (over 3.5 million in a day) gathered at the banks of the river; wading and bathing in the holy waters. No masks. Forget social distancing. Humans packed together, breathing neck to neck. Over 1,700 attendees tested positive for Covid 19, according to an official estimate.
In this scenario, at the height of the second wave, it was almost criminal to hold the Kumbh. The State, as well as followers of all faiths, need to look carefully at the proviso in Article 25.
Article 25: “Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.”
A cursory glance at the provision, and one may be freely forgiven for understanding that there is “freedom” to “freely” profess, practise and propagate religion. But free to organise and hold the Kumbh Mela, and other religious gatherings? A studied look at the Article and the caveat leaps up – “subject to public order, morality and health, and to other provisions of this Part.”
Decoding the proviso in Article 25 some things become clear.
The right to practice religion is contingent upon other factors – such as public health, and “to other provisions of this Part”. “This Part” refers to Part III of the Constitution, which contains Fundamental Rights. Article 21 (the Fundamental Right to Life) is in Part III. The Right to Health is an intrinsic part of the Right to Life; and thus a fundamental right, flowing from Article 21. Additionally, Article 47 (in Part IV), inter alia states that the State shall regard the raising of the standard of living of its people and the improvement of public health as among its primary duties.
The Superior Courts in India, inter alia, referring to Articles 21 and 47, have consistently held that the Right to Life includes the Right to Health and that one of the foremost legal obligations of the State is to safeguard, maintain and improve public health.
For example, the Supreme Court in State of Punjab v Ram Lubhaya Bagga (1998) said: “…the right of a citizen to live under Article 21 casts obligation on the State. This obligation is further reinforced under Article 47, it is for the State to secure health to its citizens as its primary duty.”
“In a welfare state… it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health”; “…Maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community… Attending to public health, in our opinion, therefore, is of high priority — perhaps the one at the top.” [(1987 (2) SCC 165, Vincent case]
The Indian state, therefore, has blatantly contravened the constitutional command.
Needless to say, any kind of congregation is unwarranted – election rallies, party/cadre meetings, sports’ meets – in these times. In allowing/encouraging religious and other public assemblies, the state, whose bounden duty is to provide “conditions congenial to good health”, is effectively creating conditions suitable for the virus to spread.
Even so, the state can redeem itself by strictly forbidding further virus-spreading disasters. The festive season is upon us: People are just waiting to break free; to celebrate outdoors in lakhs, to flock to temples, mosques, churches, gurudwaras. The state has no business to fall prey to populist and devout demands.
The fundamental right to health takes precedence over the right to practice religion.
Recently, the Madras High Court (while dismissing a PIL to reopen temples), stated: “The right to practice religion is certainly subservient to the right to life and when the right to life is threatened, the right to practice religion can take a backseat.”
The medical fraternity, in the same vein, warns against the hazards of festive turnouts in Covid times. J A Jayalal, President of the Indian Medical Association, alerted the central government: “Holding any festival is not advisable as it can be dangerous.”
Prime Minister Narendra Modi, taking note of the current surge in crowds across India, has cautioned his ministers, stating: “Even a single mistake can have a far-reaching impact…”. (July 9).
However, mere talk, and Cabinet reshuffles, appear as political grandstanding when the Indian State repeatedly drags its feet in enforcing pandemic protocols while giving in to religious pressure.
Regrettably, even as the PM sent this warning, his party colleagues in the UP government are bent on going ahead with the Kanwar Yatra. Official estimates state that over 2-3 crore Shiva disciples visited UP in 2019.
Fortunately, our courts are sentinels on the qui vive, guarding our fundamental rights. The UP government has, perforce, cancelled the Yatra after the Supreme Court, taking cognizance of a news report in The Indian Express, sent out a stern warning. The apex court, “disturbed” by the “alarming” news, and the “disparate political voices”, issued notice to the UP state government, as well as to the Centre.
It is the PM’s duty now to measure up to his words and to rein in the rogue elements and put an end to politico-religious politics.
The Supreme Court’s affirmation that the “health of the citizenry of India and their right to ‘life’ are paramount and that “all other sentiments, albeit religious, are subservient to this most basic fundamental right” must resonate and sink in with the ruling party and flow across party lines, and flood the country with a ripple effect – to become the third wave!
Anand is a Bangalore-based lawyer and writer
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