Abhinav, a 3rd year student from National Law University, Jodhpur discusses about the modification of Supreme Court’s decision regarding holding of Lord Jagannath’s Rath Yatra in the midst of a pandemic.

The Hon’ble Supreme Court of India on 23rd June, 2020 modified[1] its earlier order in Odisha Vikash Parishad v. Union of India[2] to allow holding of the Lord Jagannath Rath Yatra at Puri, but with certain restrictions to ensure safety amidst the COVID-19 pandemic. The modification was made consequent to an interlocutory application filed by the State and other intervening parties for modification of its earlier order[3], however the apex court committed certain substantive and procedural illegalities which shall be discussed below.

Previous order of the Hon’ble apex court: Ban imposed on the yatra

In the earlier order[4] dated 18th June, 2020 passed in the petition filed by NGO Odisha Vikash Parishad, the Supreme Court imposed a ban on conducting any Rath Yatra in entire Odisha in light of the rapidly growing COVID-19 pandemic. The bench headed by Chief Justice S.A. Bobde observed that Article 25 of the Constitution of India guarantees freedom to practice, profess and propagate one’s religion however, such freedom is ‘subject to’ public order, morality and health.[5] Understanding that the congregation of people in order to carry out the Rath Yatra is likely to affect public health by fuelling spread of Corona virus, it was held that the Yatra stands stayed for the year in light of the larger health concerns.[6]

Interesting to note, CJI Bobde made the following observation on Solicitor General Tushar Mehta’s plea to not impose a blanket ban on the carrying out of the Yatra:

We have good enough experience to know that if we allow any religious activity, then there will be a gathering… Lord Jagannath will not forgive us if we allow it”.[7]

The aforementioned remark indicates that the bench, including the Chief Justice, was very well aware that any allowance of the Yatra will result into congregation of people thereby spreading the virus and therefore, a blanket prohibition on the Yatra is the best possible solution in the larger safety interest of the public.

Modification of the order: Whether exigent?

As stated earlier, the June 18 order was later modified to allow the Rath Yatra at Puri alone with certain restrictions to strive to ensure maximum public safety. The Central government contended that some other ritual instead of the Rath Yatra could be permitted. However, Centre’s plea to support conduct of Puri festival seems to contradict its own stand when it was earlier found accusing Tablighi Jamaat congregation of ramping up the spread of Corona virus.[8] The Odisha Government, while expressing its apprehension on thousands of Rath Yatras taking place all over the State, filed an affidavit stating that the Yatra could be permitted in Puri only without public attendance and that the State government was willing to make necessary arrangements in furtherance of the same.

The apex court modified its previous order after hearing the above submissions to allow holding of Rath Yatras at Puri with specific restrictions to the State.[9] However, the decision seems to be unwarranted because Odisha was already facing high risk of the virus, with Puri classified as a high-risk zone. Concerns have also emerged that the Supreme Court decided to modify its previous order in response to the protests and demonstrations carried out by devotees in Odisha against the previously imposed ban[10] but nothing can be said in that regard with certainty. Additionally, the said modification is also fraught with substantive and procedural irregularities, which shall be discussed below.

Substantive illegality – Article 25 of the Constitution: “NOT” subject to public health?

Heavy reliance needs to be placed on the intention of the legislature while granting the freedom of religion to all persons by way of Article 25 (mainly Clause1)[11] of the Constitution of India. Article 25(1) begins with the words “subject to public order, morality or health” even before granting the actual freedom of religion.[12] Article 25(1) is very clear in its meaning and essence and does not present a major interpretive difficulty.[13] A literal interpretation would support the contention that the freedom guaranteed by Article 25 must pave way for protection of public order, morality and health.

With the world grappled by the attack of Corona, India alone has witnessed as many as 742,000 positive cases and around 21,000 deaths attributable to the virus alone.[14] Therefore, the health risks posed by the virus are definite and unquestionable. Interpretation of Article 25 to allow conduct of Rath Yatra as part of freedom of religion in the wake of global COVID-19 pandemic opens a pandora’s box. Such an interpretation definitely obliterates the mention of “health” as a ground to restrict the religious freedom under the said article. As already stated, the apex court did understand the health concerns posed by the Corona virus which had earlier prompted it to ban the Rath Yatras. However, modification of the said order sets a bad precedent of attaching lower value to the larger health concerns while keeping the religious freedom at a higher pedestal.

The detrimental effect of such a precedent can be anticipated when the concerned order will be cited by religious devotees to claim their freedom of religion even when public health or order are at stake. State’s arguments of ensuring adequate health safety in the times of pandemic while conducting the yatras should not have prompted the Hon’ble Supreme Court to reverse its earlier order and allow the yatras at Puri.

Very recently, the Punjab & Haryana High Court in Mubeen Farooqi v. State of Punjab & Ors.[15] had the opportunity to consider the freedom of religion amidst COVID-19 pandemic.[16] While holding that closing down of religious places and consequent non-performance of religious practices does not violate any fundamental right, the Court observed thus:

Freedom to religion is subject to public order, morality and public health and there is no violation of religious rights of a community. It is an extraordinary situation. To safeguard the health of the society, restrictions have been imposed by closing down all the places of worship for public.[17]

The Court also observed that the restriction imposed due to COVID-19 is a regulation and not a prohibition which does not abridge any fundamental right, let alone right to freedom of religion.[18] By imposing such a restriction, the Ministry of Home Affairs aims at breaking the cycle of spread of Corona virus by maintaining social distancing.

Therefore, the Hon’ble apex court in the present case committed the substantive illegality by paying lesser heed to “health” as a ground mentioned in Article 25(1) thereby setting a bad precedent in law.

Procedural Illegality – Modification by Interlocutory Order, but “review” in Essence

In addition to the above, the apex court also committed a procedural illegality by modifying its earlier order in pursuance of the interlocutory application filed by the respondents.

An interlocutory order does not go on to determine the legal rights and liabilities of the parties to the case. It was observed in Surendra Sawhney v. Murlidhar & Ors.[19] that an interlocutory order cannot encroach upon the merits of the controversy between the parties. Arguments on merits of the case therefore, are not entertained in response to an interlocutory application. However, in the present case, the original order was completely reversed and the reversed order had a bearing on the merits of the controversy and thus, it could not have been done by entertaining an interlocutory application.

Article 137[20] of the Constitution of India grants the Hon’ble Supreme Court the power to review any judgment or order already passed by it. The power of review under Article 137 is different from the modification of a court order by an interlocutory application, and the latter cannot serve as a by-pass procedure for undertaking a review in essence. The 2007 judgment of the apex court in APSRTC & Ors. v. Abdul Kareem[21] which relied on Delhi Administration v. Gurdip Singh Uban & Ors.[22] offers strength to the above argument, wherein it was held that:

By describing an application as one for “clarification” or “modification” though it is really one of review, a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open Court. What cannot be done directly cannot be permitted to be done indirectly. The court should not permit hearing of such an application for “clarification”, “modification” or “recall” if the application is in substance a clever move for review.[23]

In the matter at hand, several IAs were filed for modification of the original order however, the modified order turned out to be totally contrary to the original one. Thus, the application for modification was in essence an attempt to get the decision reviewed, without actually invoking the court’s power under Article 137. Therefore, if the court in the present case wanted to reverse its earlier order to re-determine the right to hold yatras, the legitimate course would have been by exercising the power vested in it by Article 137 and not by passing an interlocutory order for the same. By doing so, the apex court committed a procedural illegality and thus, the said order appears to be clearly challengeable on the above-mentioned grounds.

Conclusion

Not only was the Hon’ble Supreme Court’s modified order unwarranted in the wake of global COVID pandemic, it also suffers from substantive and procedural illegalities elucidated by way of the present analysis. All-in-all, the court’s order to allow Rath Yatras at Puri is arguably a bad precedent for incorrect interpretation of Article 25, which per se has been brought about by contravening the legitimate procedure enshrined by the Constitution. This is just another instance where the Supreme Court has adopted crooked measures to deliver the decision it wishes to, even if in disobedience of the constitutional mandate. The question therefore emerges: Will Lord Jagannath forgive us (the Hon’ble Supreme Court of India) now? 


Abhinav is a third year student from National Law University, Jodhpur.


[1]SC Observer, https://scobserver-production.s3.amazonaws.com/uploads/beyond_court_resource/document_upload/478/Order_22-Jun-2020.pdf (June 29, 2020) [Modified Order, Odisha Vikash Parishad v. Union of India].

[2]Odisha Vikash Parishad v. Union of India, 2020 SCC OnLine 533; Writ Petition (Civil) No. 571/2020.

[3]SC Observer, supra note 1.

[4]SC Observer, https://scobserver-production.s3.amazonaws.com/uploads/beyond_court_resource/document_upload/477/Order_18-Jun-2020.pdf (June 29, 2020) [Original Order, Odisha Vikash Parishad v. Union of India].

[5]Id.

[6]Id.

[7]Express Web Desk, Supreme Court allows Puri’s Rath Yatra with no public attendance, The Indian Express, (July 01, 2020), https://indianexpress.com/article/india/jagannath-puri-rath-yatra-supreme-court-order-6470525/.

[8]Despite Its Guidelines Against ‘Stigmatisation’, Govt Hypes Jamaat Role in COVID-19 Spread, The Wire, (July 02, 2020), https://thewire.in/government/health-ministry-covid-19-tablighi-jamaat.

[9]Odisha Vikash, supra note 2.

[10]As Protests in Odisha Mark SC’s Ban on Rath Yatra, Stand Taken by Centre and Odisha Under Scrutiny, The Wire, (July 02, 2020), https://thewire.in/law/supreme-court-rath-yatra-ban-analysis.

[11]India Const. art. 25, cl. 1.

[12]India Const. art. 25, cl. 1.

[13]Indian Constitutional Law and Philosophy, Article 25, (July 03, 2020), https://indconlawphil.wordpress.com/tag/article-25/

[14]Worldometers, https://www.worldometers.info/coronavirus/country/india/ (last updated July, 08, 2020).

[15]Mubeen Farooqi v. State of Punjab & Ors., CWP-PIL-52-2020 (O&M), [P&H HC].

[16]Surender Sharma, No violation of fundamental rights in keeping religious places closed: Punjab, Haryana HC, The Hindustan Times, (July 04, 2020), https://www.hindustantimes.com/cities/no-violation-of-fundamental-rights-in-keeping-religious-places-closed-punjab-haryana-hc/story-AazKmUQHjMNaE6Q11UlS3L.html.

[17]Mubeen Farooqi, supra note 5.

[18]Id. at ¶ 26.

[19]Surendra Sawhney v. Murlidhar & Ors., RLW 2008 (2) Raj 929.

[20]India Const. art. 137.

[21]APSRTC & Ors. v. Abdul Kareem, Civil Appeal No. 7797 of 2003.

[22]Delhi Administration v. Gurdip Singh Uban & Ors., 2000 Supp. (2) S.C.R. 496.

[23]APSRTC & Ors, supra note 12.

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

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