In this part of the article, the most recent decisions from the US Supreme Court in the cases from California and Nevada would be examined. This part will further summarise the Indian judiciary’s interventions in the first phase.

The middle ground in Pentecostal Church

With Cuomo being merely an injunction ruling, the first effective Covid-19–related decision of the US Supreme Court can be said to be South Bay United Pentecostal Church v. Newsom.

The State of California had imposed COVID-19 restrictions on indoor religious services in the manner that in Tier 1 counties, the areas with the highest infection rate, there was a total ban on all indoor worship services and in other counties, the State ordered a ban on indoor singing and chanting.

The petitioners alleged that such bans violate the right to free exercise of religion under the First Amendment to the U.S. Constitution and claimed that they were disproportionately impacted by restrictions that banned indoor worship services and indoor singing and chanting while secular businesses and activities were not subject to the total bans.

The US Supreme Court, in an overlapping but still divided Court, found that the total ban on indoor worship services was not narrowly tailored and hence, unconstitutional however, upheld the ban on singing and chanting during indoor services.

The Court also upheld capacity restrictions that would come into effect where indoor services were permitted. The dissenting opinions argued that on facts, the worship services were actually treated just as favourably as secular activities with comparable COVID-19 risks and no relief was necessary.

Although the majority did not issue an opinion, CJ Roberts filed a concurring opinion clearly outlining that federal courts owe significant deference to politically accountable officials with the “background, competence, and expertise to assess public health”. He clearly noted that specifically, there was no basis to override the health decision to prohibit singing indoors as that was deemed to increase the risk of COVID-19 transmission.

However, he noted that a complete ban to religious activities while allowing other secular activities of similar nature represented “insufficient appreciation or consideration of the interests at stake” and breach of the right to free exercise of religion.

Justice Barrett, joined by Justice Kavanaugh, filed a partially concurring opinion with a caveat that indoor signing bans, if applied across sectors and not just to religious activities, would be justifiable.

In an interesting, partially dissenting [the other way] and partially concurring opinion, Justice Gorsuch, Justice Thomas and Justice Alito, noted that California had imposed more severe regulations on religious institutions than on many other businesses. On the issue of complete ban, they noted that religious institutions were singled out and assigned their own rules which forbid any indoor worship and in contrast, retailers were allowed to operate at 25 percent occupancy while other businesses operated at 50 percent occupancy or more.

The judges noted that while California was the only State to ban all indoor religious services, the State failed to establish the factors increasing the risk of COVID – 19 contraction were always present in religious activities or always absent from the secular activities allowed.

The opinions noted that the State thus “single[d] out religion for worse treatment than many secular activities”. On the issue of the singing factor, the opinion disagreed from the majority noting that music, film, and television studios were permitted to sing indoors and it appeared the State seeks to favour “lucrative industries while denying similar largesse to its faithful”.

The dissent, by Justice Kagan, joined by Justice Breyer and Justice Sotomayor, noted that the majority’s order defied the Court’s precedents and exceeded its judicial role, and risked exacerbating the COVID-19 pandemic.

The dissent noted that the neutrality requirement in First Amendment requires to treat similar cases alike and could treat dissimilar cases accordingly, erringly similar to Indian jurisprudence of equals being treated equally and unequals, unequally.

The dissent noted that religious gatherings could not be medically compared to secular activities as they specifically involve large groups of people being in close proximity for extended time periods like a - worship service, a political meeting, a lecture, a cinema, a concert, etc. [which were medically deemed not carry a comparable COVID-19 risk like indoor religious activities].

The dissent also noted that other indoor sites, e.g., retail stores, were treated less severely as it has been medically established that people were in less close proximity for shorter periods of time while shopping and other workplaces – like the entertainment industry – had to comply with workplace-specific protocols that were subject to enforcement by State authorities which could not feasibly be applied to the congregation of a house of worship.

Strikingly, the dissent said that the majority’s “armchair epidemiology” weakened efforts to tackle the public health emergency and contravened the reasons why the Constitution entrusted people’s safety and health to elected state officials, not federal courts.

By displacing expert-based judgments and policy with “judicial edict”, the Court was “inject[ing] uncertainty into an area where uncertainty ha[d] human costs”, the dissent stated.

An overlapping but evolving American Supreme Court, in Pentecostal Church, chose a middle ground between allowing religious activity on grounds of parity with secular activities and adhering to State imposed lockdown restrictions. This divided American Supreme Court was to take a decisive turn in the coming decision.

The Calvary Chapel maturity

After the American Supreme Court had shown a penchant for upholding freedom of movement and congregation over and above the sanctity of lockdown restrictions, the Court in the case from Nevada – ironically without a descriptive majority opinion, expressed a whole lot.

The American Supreme Court revisited Covid-19–related restrictions on religious worship in Calvary Chapel Dayton Valley v. Sisolak. During what may be loosely termed as the "Unlock" phase, the State of Nevada, prohibited churches and other places of worship from holding in-person worship services of ten or more people regardless of compliance with social distancing and public health guidelines. Further, restaurants and food establishments, nail care salons, hair salons, and barber shops were allowed to open and operate at 50% capacity.

Subsequently, even gyms and fitness facilities, bars and taverns, water parks, museums, art galleries, zoos and aquariums, casinos, movie theatres, bowling alleys, and indoor malls were opened up with 50 % capacity along with full-fledged opening of salons, spas, massage services, body art and piercing establishments, etc. The religious establishment however were capped at 50 people under any circumstance.

The Church claimed that a State directive allowing non-essential businesses, such as casinos and water parks, to operate at 50% capacity but preventing places of worship from congregating with more than 50 people under any circumstance, was discriminatory and violated its right to Free Exercise, Free Speech and Public Assembly protected by the First Amendment.

Despite what may be termed to be a blatantly discriminatory lockdown regime, the majority, without an opinion denied an emergency petition by a 5-to-4 vote thereby, unequivocally acknowledging Executive supremacy in matters of pandemic policy making.

However, in pointed dissents, Justices Samuel Alito, Neil Gorsuch, and Kavanaugh argued that the Nevada order in question discriminated against religion by treating casinos more favourably than places of worship.

Justice Alito, in a terse comment on the local politics, noted that it was not surprising that the State of Nevada was discriminating “in favo[u]r of the powerful gaming industry and its employees”. The reasoning of the dissent was largely in tune with the previous partially minority/ partially majority opinion of Justices Gorsuch, Thomas and Alito in South Bay United Pentecostal Church v. Newsom holding that there existed no discernible grounds whatsoever to single out religious service in the manner the State of Nevada has done especially when other secular activities, which have an economic angle, have been allowed to a great degree.

The questions for the minority, was singularly of the Free Exercise clause in the First Amendment in the context of blatant and ex-facie arbitrariness in the exercise of such freedoms of individuals and organisations. The question was far detached from what may be termed as macro-policy decisions regarding allocation of supplies to Federal units, procurement of vaccines, the market driven or government regulated price fixation of medical goods, or other such measures.

In sum and substance, the American judiciary has further steered away from any executive management aspects and confined itself to direct constitutional challenge specifically in the context of individual freedom of movement, freedom of religious exercise or bodily privacy viz. the power of the State to regulate the same during a pandemic.

From dealing with the case from New York - Cuemo, to the case from Nevada - Calvary Chapel, it can be noticed that even a mature judiciary like the United States took some time to evolve and form any describable judicial policy. The same is not surprising as the pandemic has brought to the fore issues which are far detached from the classic American “liberal” or “conservative” judicial pigeon holes.

More particularly, what is termed as the conservative side of the US Supreme Court as on date, seems to have particular fine-tuned its opinion over the course of the year with the exception of Justice Alito and Justice Gorsuch digging deep.

Indian judiciary – Preliminary Response

While the Indian judiciary recognises the doctrine of separation of powers, the applicability of the said doctrine, can be said to be patchy. While the Supreme Court of India zealously guards the independence of judiciary on this count, the Court has, over the years often intervened in issues which can be regarded to be “political questions” outside “judicially manageable standards”.

That apart, the Indian Supreme Court has significant safeguards in the jurisprudence against interference in policy matters. The Court has further held that the Court cannot substitute its own judgment for that of the authorities in judicial review of administrative action. The Supreme Court has also consistently declined to examine questions concerning technical or scientific issues relying or trusting the experts in the decision-making process.

Despite the above, the Indian judiciary has pervasively dealt with questions concerning the pandemic examining and over-seeing a variety of issues which may sit uneasily with the jurisprudence of the Court. Further, quite detached from American judicial attitudes, the Indian judiciary has not examined the issues from a purely legal purview largely ignoring the technical intricacies of judicial review or the extent of individual freedoms of movement, religion or profession in the times of lockdowns and State sanctioned restrictions.

The said form of judicial review, much like the pandemic itself, can be divided in to two phases as of now. In the first phase, the Court was flooded with public interest petition, on almost every issue concerning the pandemic. In many ways, the attitude of the Court was more correctly resembled by what petitions it dismissed than the ones it entertained.

The majorly noticeable orders of the first phase can be summarised as under :

A. The Indian Supreme Court had suo motu, by its order dated March 23, 2020, declared that with effect from March 15, 2020, the period of limitation for filing pleadings as specified in the general law on limitation or any special law enacted by the State/Central government, whether condonable or not, will automatically stand extended until its further orders. The same was further finalised in terms of various particulars in an order dated March 8, 2021 and the suo motu writ petition was disposed of. However, considering the second wave of the pandemic, the court restored the earlier measures as passed in March, 2020 vide an order dated April 27, 2021.

B. The Indian Supreme Court while hearing the case of suo moto writ petition titled as “Contagion of COVID-19 in prisons” issued directions for release of prisoners so as to prevent the spread of COVID-19 in prisons.

C. The Indian Supreme Court refused to entertain a plea which wanted it to direct the Centre to transfer all funds collected so far by the PM CARES fund to the National Disaster Relief Fund. A three-judge bench led by Justice Ashok Bhushan said financial planning was the government’s prerogative and “no one could question it”.

D. The Indian Supreme Court refused to interfere with the government and the Reserve Bank of India's (RBI) loan moratorium policy and declined to extend the six months loan moratorium period. The apex court said that the waiver of complete interest is not possible as it affects depositors. Even further, the court refused to interfere with the Centre's and RBI’s decision to not extend the loan moratorium beyond August 31 last year, saying it is a policy decision. A similar relief prayed for in a PIL for the second wave was yet again denied a few days ago by the Supreme Court.

E. Pursuant to a letter to the Supreme Court by certain Senior Advocates which asserted that the Court’s non-interference violated the fundamental rights of migrant labourers; the Supreme Court 'In Re: Problems And Miseries Of Migrant Labourers' took suo motu cognizance of the ‘problems and miseries of migrant labourers who had been stranded in different parts of the country.’

There was a string of orders by which the Court took straight executive charge and issued prominent directions to the union Government, all State Governments and all Union Territories with respect to the management of the migrant labour crisis; pertinent being the eight specific directions being issued with respect to the management of the situation. The Court recently passed further orders in light of the second wave.

On May 24, 2021 the Court stated that all migrants stranded must be provided dry ration under the Atma Nirbhar scheme or any other scheme. The Bench also stated that there needs to be a central database for the registration of migrant workers.

Further, on June 11, 2021, the court addressed the issue of unregistered migrant labourers, and their ability to avail benefits under the Atmanirbhar scheme, Pradhan Mantri Garib Kalyan Yojna and the “One Nation One Ration Card" scheme.

F. The Supreme Court, owing to mishandling of human mortal remains and the horrendous treatment being meted out to the patients, initiated suo motu action with respect to these issues. The Court on June 19, 2020 issued multiple directions to both Central and State governments regarding hospital management, testing, treatment of patients, etc. The court constituted expert committees, issued guidelines with respect to CCTVs and attendants of Covid patients.

Even further, on December 18, 2020, the court issued another string of directions on the same issues to be adhered to by the Union Government, the States and all Union Territories.

G. On the educational front, the Supreme Court ruled that final year examinations for college and university students must be held by 30 September 2020, despite conflicting student petitions before the court for more flexibility due to the impact of the coronavirus pandemic. With its ruling, the court backed higher education regulatory body the University Grants Commission (UGC), which had insisted that examinations are necessary to maintain higher education in the final year and said its word was final when it came to higher education in the country.

H. As the Covid-19 pandemic forced closure of with a shift to online classes, the Supreme Court said educational institutions must reduce fees as their running costs have come down with various facilities provided on campus remaining closed. The Court said that the persons in the management of educational institutions should be sensitive to the problems faced by people due to the pandemic and take steps to provide succour to students and their parents in these harsh times. It said insisting on payment for facilities not provided to students would amount to profiteering which must be avoided by the schools.

I. The Supreme Court ordered the States and the Union Territories to ensure there is no break in the education of children orphaned due to COVID-19 and directed the governments to make provisions for continuance of education of the children both in government as well as in private schools.

J. The Supreme Court directed the Centre and States to issue monetary guidelines for nutritional support to Anganwadi centres. The Court asked all States to take a decision by January 31 2021 on reopening of anganwadi centres outside containment zones which were closed during the Covid-19 pandemic.

K. In February 2021, the Supreme Court dismissed a plea that sought another shot at the civil service examination conducted by the Union Public Service Commission (UPSC) in the wake of coronavirus pandemic. The court called the petitioner’s reasoning that the pandemic had disrupted studies a mere excuse to get more chances to appear for the highly competitive examination. The Court noted that it was a policy decision of the government and judiciary cannot legislate or frame policy on the issue.

This first phase was marked largely by the elements of judicial oversight and soft touch approach. The first phase wherein the Courts were bombarded with a flurry of “public interest” litigation petitions and the Court, while sternly refusing the frivolous petitions, took cognizance of some limited issues over which it maintained a level of oversight – thereby maintaining a semblance of separation of powers.

This is the second of the three part series. You may read the first part here.

The author Kanu Agrawal is an advocate at Supreme Court of India.

Disclaimer : The writer is a part of the legal team of the Central Government and has assisted the team in various COVID related litigation. The views of the writer do not express the views of the Government of India.