(Arushi Kankariya and Diya Vaishnav are Second year students at Gujarat National Law University, Gandhinagar)
Featured Painting – “Gettin Painting” by Archibald Motley
INTRODUCTION
The spread of the novel coronavirus is disrupting life everywhere in unprecedented ways. The restrictions on mobility, and lockdowns are affecting many aspects of life, including religious exercise, particularly the ability to gather in religious places. Quite unsurprisingly, many people are grappling with how to adapt to these restrictions, especially in times like this where faith and worship is deemed essential to have hope and faith. The constitutionality and appropriateness of these restrictions has been called into question and it is being enquired if these rules have violated their fundamental rights and religious freedom protections. Are these rights absolute or unconditional or are subject to reasonable restrictions? This article seeks to enunciate these contentious questions, with the aim to determine whether the right to freely congregate prevails over the essentiality of imposing measures to contain the virus in such trying times, where the very existence of human life is at stake. The authors aim to discuss and refute the argument that the right to religious gathering is an essential and important practice to the religion in times of circumstances like public unrest or a pandemic, as in the present scenario.
RIGHT TO WORSHIP
The grand inauguration and “Bhumi Pujan” of the Ayodhya Ram Mandir, at a time when the pandemic effect is at the peak, speaks a lot about the faulty lines under our own legal set up.
India is a home to many different religions with even more beliefs and faith. There are many different sects and divisions within these religions and owing to the diverse population, it becomes extremely important to protect and secure the rights of each individual to worship and follow and propagate any religion. The religious sentiments and beliefs of Indian people are one of the most important concerns of their lives. The law has been clearly identified for the need to grant the freedom to worship, profess, practice or propagate any religion across the world.
Articles 25 to 28 in the Constitution of India provide the citizens of India the right to freedom of religion. Similarly, the First Amendment to the U.S. constitution guarantees the citizens, the right to practice the same. The government shall not make laws that prohibit or restrict the practice of religion, and the right to assemble to profess the religion, and the same has been guaranteed by Article 25 of the Indian Constitution. However, these rights are not unbridled and are subject to reasonable restrictions for ensuring welfare of the society. Article 25, clause 1 of the Indian Constitution explains that “subject to public order, morality and health”, every citizen is equally allowed to profess, practice and propagate religion. There may be instances where people’s religious sentiments and beliefs are hurt; but the same does not invoke any legal wrong. In 2017, An FIR was lodged against Mahendra Singh Dhoni on the allegations of hurting religious sentiments by portraying himself as Lord Vishnu on a magazine cover in Andhra Pradesh Court. A Special Leave Petition was filed by the cricketer in the SC. The complaint was subsequently quashed by the SC.
Therefore, guaranteeing the freedom of religion is not only essential to secure religious rights but also to define the scope of what could be considered legal wrong against practice of religion. However, due to the large land of various religions, it becomes extremely difficult to determine what is absolutely essential. It’s impossible to lay out a perfectly fit doctrine to dredge up whether a particular action can be put under the bracket of absolute essentiality for propagation of a religion.
In the case of Ratilal Panachand Gandhi v State of Bombay, the Supreme Court of India ruled that Article 25 contains certain limitations in respect of practicing one’s religion freely; public order, morality and health and other provisions of the Constitution; Laws relating to or restricting any financial, political, or other secular activities connected with religious practices; Social welfare and reform that might interfere with religious practices. Article26 guarantees comprehensive rights to a religious denomination, subject to the public order, morality, and health.
THE PANDEMIC
In an attempt to curb the devastating spread of the novel coronavirus, the governments of almost all nations suspended all human activities and gatherings other than those pursuing any essential activities, in order to mitigate the chances of a further spread of the virus.The precluding of religious worship at religious sites and religious gatherings was one such measure delineated, by the Governments. India, a country grappling with the rapid spread of the infection, housing about 6 million confirmed cases, is also an abode to a high religious fervor. Large religious gatherings held in spite of the restricting guidelines have led to emerging hotspots in the country. Similarly, in other countries too, religious gatherings have proven to be hotbeds for outbreaks. Half of South Korea’s cases can be traced back to a meeting of the church. In Malaysia’s capital, Kuala Lumpur, several hundred Muslims who attended a mosque service contracted the virus, and in Washington D.C., a religious procession of the church with more than five hundred congregants, led to a rise in the spread of the infection. The Indian government, therefore, in order to counter an upsurge in the number of cases and flatten the curve of the COVID-19, has enforced such restrictions on religious gatherings and processions. Similar measures have been administered in the U.S.A., Japan, South Korea and Iran, where several million worshipers have been deprived of the comfort of attending religious ceremonies in a moment of grave uncertainty and confusion. This leads to a conflict between the right to religious worship and the necessity for maintenance of the public health; thus giving rise to a disputed set of claims arising out of the discord between the two. Religious organizations and leaders have been disregarding and openly challenging the restrictions, asserting a violation of the fundamental right to worship. While it is undisputed that religious gatherings are important for people to practice and share their beliefs; they are also sites for transmission of the disastrous virus, endangering not only participants in these gatherings but everyone with whom they interact closely with.
However, President Donald Trump’s recent labelling of the churches and other houses of worship as “essential”, in such an alarming state of danger, has been appalling. The U.S. President threatened to “override” the governors defying this order, and insisted on the compliance of the same, even in the areas still under a lockdown. Similarly, the allowance of the procession of the Rath Yatra in Odisha by the Supreme Court of India has been criticized for being inconsiderate to the ever-rising spread of the infection. After the Chief Justice reversed his own decision in a matter of days to allow the chariot to roll on roads of Puri, the same was looked down upon by most as a bad precedent. The order was viewed to put an enormous burden on the public health authorities, who are already embroiled in a struggle to curb the menace of the ever-increasing number of infected cases of the virus. Yet, the right to religious worship has been cited for backing the decision. Thus, it is imperative to rationalise whether the right stands unbridled, even in such perturbing moments of danger.
ESSENTIALITY OF PRACTICE V. REASONABLE RESTRICTIONS
The banning of all religious gatherings by the Government has been justified on the grounds of Public Health. However, the same decision has been criticised for contravening with the Right to Religious Worship. Claims that the citizens’ rights to worship and practice religious faith have been breached, have been causing quite an uproar in the nation. India, being a land of varied diverse religious faiths, makes it very tedious to frame a unified doctrine for deciding whether a practice is unreservedly essential for the practice of a religious belief. The Constitution guarantees to its citizens, the fundamental right to freedom of religion under Article 25. However, the fundamental rights are not absolute, and thus can be bridled in cases where the collective interest of the society requires a paramount surveillance; for the greater good. Therefore, the Indian Constitution does not provide for the absoluteness of the fundamental rights, and takes into consideration the notion of reasonable restrictions for the greater welfare of the society. The decision to impose prohibitions on religious gatherings, has not, in any way, violated the constitutionally guaranteed right to worship rather, has ensured public health and welfare. The temporary restrictions of gathering and shutdown by the government are exempted under the Article 25, which guarantees the freedom of religion to the citizens. Therefore, it cannot be said that the measures enforced contravene the fundamental right, since they fall under the exceptions to the same right. Presently, the issue does not seem to be debated over in relation to the essentiality of the gatherings, but over the justification behind the restrictions imposed on this right. It must be noted that when a restriction is challenged, the better approach is not to determine the scope of the freedom to religion, but whether the restriction imposed is justified or not. Noting that religious freedom is an integral component of a democracy, the present restriction imposed on the same satisfies the requirement of reasonableness, adjudicating it to be bona fide and legitimate; since any diversion from the same, would lead to an aggravation of the precarious state of affairs existing due to the rapid outspread of the infection.
The test of essential religious practice was laid forth by the Supreme Court in 1954 in the Shirur Mutt case. The Court held that what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of the religion itself. However, in Sri VenkataramanaDevaru v. State of Mysore, the court shifted the judicial approach wherein the court will determine whether a practice in question is qualified as essential. Thus, the test of determining what is ‘essentially religious’, became conflated with ‘essential to religion’.
In the ongoing crisis of Covid-19, Mubeen Farooqi moved to the Punjab high court making averments that the restrictions imposed by the Ministry of Home Affairs were relaxed frequently but no relaxation has been provided qua religious places. He also suggested that the places of worship be opened since the shops and markets were permitted to open and operate. The petitioner argued that the restrictions imposed were unconstitutional and the fundamental rights are being violated and the impositions were excessive and unreasonable.
However, the Court observed that the imposition of restriction on religious places is in the larger public interest. The guidelines have been issued strictly in conformity with the Disaster Management Act, 2005. The imposition of restriction is not repugnant to Article 25 of the Constitution of India. Hence, due to lack of merit, the court decided to dismiss the petition.
CONCLUSION
At present, with the Central government’s decision to a gradual unlocking of the shutdown in a phase-manner, the Supreme Court heard various petitions, pleading for the unlocking of religious activities for festivals and celebrations.
The Bombay High Court rejected the petition made by Jain community members seeking permission to visit Jain temples during the eight-day paryushana Festival.. The petition stated that since various shops and marketplaces had already opened, the community shall also be allowed to offer prayers while observing social-distancing norms. The Court refused to grant relief to petitioners, and held that it cannot let the temples to open, due to the imminent danger of coronavirus and the overburdened machinery to handle the activities. When this matter was appealed before the Supreme Court, it criticized the decision of the Maharashtra government to open malls and shops but not religious places. The Apex Court after hearing and examining the matter, allowed only three temples to open in Mumbai for the last two days of Paryushan with proper social distancing guidelines. It also made it very clear that these requests couldn’t be extended for festivals like Ganesh Chaturthi as it involves larger gatherings. However, a bench of the Court, including the Chief Justice recently ruled against the holding of Muharram processions in the country, citing Public Health concerns. The permission for holding processions during the Muharram festival was denied, keeping in view the current restrictions on all sorts of religious processions, including the celebration of Ganesh Chaturthi in various cities, to prevent the worsening of the present situation in the country.
Upon analyzing the sudden upsurge in the number of positive cases reported in India post the unlocking of the shutdown on the routine activities, it is conclusive that any gathering or socializing in the current scenario, will only lead to a further aggravation of the pandemic. Thus, it is pertinent to prevent any avoidable mass meetings and congregations, not barring the religious gatherings. It must be noted that any administrative action essential to the public health, curbing the fundamental rights reasonably, is not a violation of the human rights principles or the Constitution. Instead, it is in the best interest of the public, which the government aims to serve. President Trump’s order to reopen all places of worship across the whole of the United States of America, in the light of the hesitation followed in other countries regarding the same, can be said to be absurd and in disregard to the lives of the American citizens. It is fitting to conclude that in the face of a grave threat to human life, the essentiality of a religious practice cannot be given overriding powers; since the existence of those to whom these mean to serve, is at stake due to the crisis caused by the Pandemic.
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