Article 25 of the Constitution guarantees to all persons the freedom of conscience and the right to freely profess, practise and propagate religion. Article 26 guarantees to all religious denominations, inter alia, the right to manage their own affairs in matters of religion. These rights may be exercised within the confines of one’s private space or with the participation of the public, subject to public order, morality and health.

To what extent can public participation in religious rituals/festivals be curtailed in the middle of a pandemic posing grave health concerns? The answer appears to have moved from ‘partially’ to ‘completely.’

When the first lockdown was announced in March 2020, all public places, including places of worship, were strictly shut down. The restrictions were partially eased in June but places of worship remained largely closed to the public. Initially, the Supreme Court seemed to favour the (gradual) opening up of places of public worship, while also deferring to the wisdom of the executive in the matter. However, reeling under the havoc wreaked by the second wave of COVID-19, and with reports of a third wave around the corner, courts have now adopted a very cautious approach.

On June 18, 2020, while hearing a petition for postponing the Rath Yatra scheduled to be held at Puri, the Supreme Court directed that there shall be no Rath Yatra (nor any secular or religious activities associated with it) anywhere in the temple town of Odisha or in any other part of the State in the year 2020. While doing so, the Court referred to Article 25 being subject to health and observed that around 10 to 12 lakh people are likely to gather for the Rath Yatra. Hence, it would be appropriate to suspend it ‘in the interests of public health and safety of citizens who are devotees.’

However, after various applications for intervention and modification of the order were filed, four days later, the Court permitted the Rath Yatra to be conducted subject to compliance with various conditions pertaining to social distancing etc. The Court noted that an affidavit was filed on behalf of the State of Odisha, stating that it might be possible to conduct the Rath Yatra “in a limited way without public attendance” as proposed by the Chairman of the Puri Jagannath Temple Administration. The Court therefore reasoned,

“If it is possible to ensure that there is no public attendance, we see no reason why the Rath Yatra cannot be conducted safely along its usual route from temple to temple.”

Thereafter, in July, the Court declined to restrict access of the general public, devotees and pilgrims to the annual Amarnath Yatra for 2020, observing that the decision must be left to the competence of the local administration.

In the same month, the Supreme Court was seized of a Special Leave Petition filed against a judgment of the Jharkhand High Court concerning the entry of the general public in Baidyanath Jyotirlinga Temple at Deoghar and Baba Basukinath Temple during the months of Shravan and Bhado. The High Court had directed ‘online darshan’, while permitting the Temple trust to perform worship without allowing public participation. Partly modifying the directions issued by the High Court, the Supreme Court observed that, "total restriction on darshan by public is prima facie unreasonable," and that it should have been left to the discretion of the State government to permit ‘restricted entry of general public’ maintaining social distancing.

The Court then proceeded to request the State government to explore the possibility of regulated public darshan (as was being done in case of another Jyotirlingam in Ujjain), not only for temples, but also other religious places such as churches and mosques, observing,

“The State cannot shirk from its responsibility to enforce the social distancing norms, particularly when there is opening up of such places throughout the world.”

As the number of COVID-19 cases reduced, places of public worship gradually opened up with limited public entry, and religious festivals also took place across the country. However, after the second wave hit around April 2021, the approach of the Supreme Court completely changed. Several High Courts also refused to allow any leeway in permitting limited public gatherings, and the wisdom of the executive was deferred to only when a total prohibition was imposed.

On April 15, 2021, the Delhi High Court permitted entry of 50 people into the Nizamuddin Markaz mosque during Ramzan subject to the extant SOP, noting that there was no direction to close places of worship for the public and no clear stand was taken by the government as to whether gatherings were permitted in other places of worship like temples, churches, etc. At the same time, the Court cautioned that COVID-19 cases were increasing exponentially in Delhi and that care should be taken that it does not affect the health of the devotees or of the public at large.

A day later, the Madras High Court refused to allow limited public entry for the Chithirai festival conducted at the Meenakshi Sundareswarar Temple, noting that a total ban was imposed on Tiruvizhakkal and religious congregations.

While hearing PILs regarding the State’s handling of the pandemic, the Uttarakhand High Court on April 28, 2021, orally remarked that the State had become a ‘laughing stock’ due to its organizing of the Kumbh Mela in the midst of a raging pandemic. On June 23, 2021, the Uttarakhand High Court noted that “there is a clear co-relation between the holding of Kumbh Mela in April, 2021, and the consequent deaths which occurred in Uttarakhand in May, 2021.”

Taking into account the warning of a third wave and the non-adherence of the public to precautionary SOPs, the High Court directed the State to review its decision to commence the ‘Char Dham Yatra’ from July 1, 2021. Noting that the Amarnath Yatra had already been cancelled by the J&K Administration, the Court observed that “a catastrophe like COVID-19 pandemic should not be re-invited by holding and permitting large gathering at religious shrines, and by permitting the Char Dham Yatra by the State Government.”

When the State decided to permit the Yatra ‘to the limited extent’ that residents of certain districts would be permitted to visit temples in those districts, on June 28, the High Court stayed its decision but directed the government to ensure live streaming of the religious ceremonies for the benefit of the public, rejecting the argument that our Shastras prohibited such live streaming.

The Karnataka High Court did not take kindly to the son of the Chief Minister entering a temple in Mysore and performing pooja in June 2021, and observed that as per the directions used by the State, temples shall remain closed for the public and this has to be scrupulously complied with by all concerned without exception, including political leaders.

On July 6, 2021, the Supreme Court dismissed applications for holding Rath Yatras in other temples in Odisha at par with Puri. On July 19, the Supreme Court dismissed a petition challenging the decision of the State of Maharashtra to allow only 10 palkhis to perform the wari to Pandharpur.

On July 20, the Bombay High Court dismissed two PILs praying for a direction to the Municipal Corporation to increase the cap on the number of buffaloes to be slaughtered (from 300 to 700 per day) on the occasion of Bakri-Eid, as well as to make available certain space at Deonar Abattoir for the sacrifice, observing,

“We need to once again remind all and sundry that COVID is yet to be a thing of the past and when health issues are at stake and the administration has been toiling hard to keep every human alive, religious interests have to yield to larger public interests.”

After the State of Uttarakhand suspended the Kanwar Yatra scheduled to commence from July 25, the Supreme Court took suo motu cognizance of the decision of the State of Uttar Pradesh to allow the same. On July 16, the Supreme Court asked the State of Uttar Pradesh to reconsider its decision given the looming threat of a third wave, categorically observing, “

The health of the citizenry of India and their right to “life” are paramount. All other sentiments, al beit religious, are subservient to this most basic fundamental right.”

On July 19, the State conveyed its decision of postponing the Yatra. On the next day, the Supreme Court also reprimanded the State of Kerala for allowing opening of shops for 3 days prior to Bakri-Eid. The State of Kerala had filed an affidavit stating that it had taken the decision, inter alia, in view of agitation led by traders’ organizations and opposition political parties. Noting that a full day of relaxation was granted in areas where the infections were the highest, the Supreme Court lamented,

“To give in to pressure groups so that the citizenry of India is laid bare to a nationwide pandemic discloses a sorry state of affairs.”

The Court finally directed the State to give heed to Article 21 and Article 144 of the Constitution, and held that pressure groups of all kinds, religious or otherwise, cannot in any manner interfere with ‘this most precious Fundamental Right of all the citizens of India’ and that if untoward spread of the disease takes place because of the relaxations permitted, the Court will take action against those responsible.

On July 23, the Gujarat High Court dismissed a petition to allow members of the Parsi community to perform the last rites of the deceased in accordance with their customary religious practice Dokhmenashini, while observing that the guidelines on management of dead bodies were issued in larger public interest considering the extraordinary circumstances prevailing in the country, and would take precedence over individual interest as also the religious faith and belief of a particular class or community.

The Supreme Court, in 2018, had banned the bursting of hazardous firecrackers during Diwali throughout Delhi NCR. The Court held that assuming this is a part of religious practice, if it threatens the health and lives of people (living in Delhi and NCR), it is not entitled to protection under Article 25 (being subject to Article 21).

Extending this principle across the country for all religions, the approach of the courts clearly indicates that a total prohibition on public participation in religious worship is permissible when there is an imminent threat to life/health, and that larger public interest will prevail over religious freedom.

Till we remain in the grip of the pandemic, references to paramountcy of health will naturally be construed in the context of COVID-19. However, this lays the foundation for evolution of jurisprudence on how far religious freedom can be curtailed if it affects health in other situations – whether bodily harm can be inflicted on oneself; whether vaccination can be refused; whether supply of non-vegetarian food (consumption being a matter of choice) to fulfil adequate nutrition requirements can be refused – all citing religious faith and belief.

It remains to be seen how the courts deal with such issues where the right to health (of oneself or that of the public, traceable to Article 21 or Articles 25/26) squarely clashes with religious freedom in a non-pandemic setting.

The author is a Delhi-based advocate.