This case analysis has been written by Uthra Varadharajan
Regarding the reopening of temples and the Char Dham, the high court of Uttarakhand decided on 28th June that live streaming of all the rituals and poojas of the temple to the public will be the best option given the rising cases and possibility of a third wave. The court further held that the opposition of the priests to live streaming is inferior to the paramount of saving the lives of thousands.
Considering the fact that the country was still reeling under the impact of COVID-19 pandemic, considering the pleas raised by the learned counsel for the petitioners, in different PILs’ filed before this Court, this Court had requested the State to review its decision with regard to re-opening of the Char Dham Yatra even in a phased manner.
FACTS OF THE CASE
The Court was informed that the Government had issued order wherein the Government thought it proper to re-open the Char Dham Yatra in a phased manner. According to the said G.O., in the first phase, the residents belonging to the Chamoli district would be permitted to visit the Badrinath temple; the residents of Rudraprayag district would be permitted to visit the Kedarnath temple; the residents of Uttarakhashi district would be permitted to visit the temples of Gangotri and Yamunotri. It was also proposed that in the second phase, the residents of other ten districts of Uttarakhand would be permitted to visit the Char Dhams.
Dr. Ashish Chauhan has submitted an affidavit with regard to the decision taken by the Cabinet and with regard to the SOP issued by the Government on and with regard to other arrangements being made at the Char Dham.
A bare perusal of the affidavit filed by Dr. Ashish Chauhan, clearly reveals that by its decision the Cabinet has decided to permit the people living in Uttarkashi, Rudraprayag, and Chamoli districts to visit their respective shrines from 01.07.2021. Secondly, it has decided to review its decision with regard to the second phase as mentioned earlier, whereby the people of the entire State would be permitted to visit the Char Dham from 11.07.2021. Thirdly, considering the dangers which emanate from the COVID-19 pandemic, the Cabinet has decided to prohibit the “Kawad Yatra” this year.
The affidavit is absolutely silent on two essential issues. Firstly, whether the pilgrims would be 21 permitted to take bath in the holy Kunds (pools), which are existing at Badrinath and Kedarnath, or not? Secondly, considering the fact that the monsoon has already struck, and the monsoon has already spread throughout Uttarakhand.
Despite the best intentions of the State Government, the Civil Administration of Haridwar and Rishikesh had singularly failed to implement the said SOPs. There are a large number of images, readily available on the internet, which clearly prove that a sizeable number of pilgrims neither wore masks, nor maintained the social distance of six feet, nor used the sanitizers, nor used the soaps to wash their hands.
CONTENTION OF THE PARTIES
The defendants of the case submitted the govt order to reopen the temples and allow the citizens of the respective cities to visit them. The counsel for the defendants promised that the SOP’s will be implemented with strict rules and regulations and all precautions will be taken to ensure the crowd control and social distancing. The SOP further claims that there shall be testing labs established at the Char Dham.
Mr. Om Prakash, the learned Chief Secretary, submitted that the Government is in discussion with the Priests of the Char Dham whether live streaming will be permitted, or not? He further submits that a few priests may oppose the live streaming from the temples. It was further submitted that live streaming may be prohibited by the Shastras. Therefore, it will not be possible to have live streaming of the ceremonies performed inside the Sanctum Sanctorum.
Owing to the infamous KUMBH MELA and other pilgrimage centres through which the cases rapidly increased in the respective areas and taking into account that half the population of the pilgrimage areas have not been completely vaccinated, the petitioners posed the question of how will the centres be completely safe for the public? How many vaccine centres can be set up and the same will lead to the technical staff of the state getting affected?
Hence the petitioners filed the petition for the government to rethink their order of reopening the temples to the public
OBSERVATION OF THE COURT AND JUDGEMENT
Undoubtedly, the State is the parens patriae. Both according to Article 25 of The Universal Declaration of Human Rights, and Article 12 of The International Covenant on Economic, Social and Cultural Rights, right to health is a fundamental right of the people. Moreover, according to Article 21 of the Constitution of India, it is the duty of the State to protect the lives of the people. Moreover, Article 39(e) of the Constitution of India imposes a duty upon the State that the health of the people is not abused. Article 39(f) of the Constitution of India further directs the State to ensure that children develop in a healthy manner. Article 47 of the Constitution of India directs the State to raise the level of nutrition and standard of living and to improve the public healthcare system. Thus, an onerous duty has been cast upon the State to protect the lives of the people through whatever means available to the State.
However, the decision of the Cabinet will unnecessarily expose the people to the dangers of the third wave. Thus, the decision is against Article 21 of the Constitution of India, against Articles 39(e) & 39(f) and against Article 47 of the Constitution of India. It also ignores India’s commitment to the International Conventions.
Considering the failure of the civil administration in implementing the SOPs repeatedly issued both by the Central Government and the State Government, during the Kumbh Mela, during the Ganga Dusshera and during the opening of the Neeb Karoli Dham (Kainchi Dham), the Cabinet should have realised that the SOPs are flouted by the people, and the civil administration does not have the wherewithal for implementing them in sensu stricto. Therefore, while deciding the issue, the Cabinet seems to have ignored a vital factor. Therefore, prima facie, the Cabinet decision dated 25.06.2021 is arbitrary.
Therefore, all the three elements, namely the existence of a strong prima facie case, the balance of convenience, and the irreparable loss suffered by the people at large, are in favour of the public. Hence, it would be in the public interest and in the interest of justice to stay the operation of the decision of the Hon’ble Cabinet dated 25.06.2021, vis-à-vis the opening of the Char Dham Yatra for the residents of District Uttarkashi, Rudraprayag and Chamoli, for a period of four weeks, and to direct the State Government not to permit the pilgrims to reach the Char Dham Temples during the period of four weeks.
The Court was well aware of the high religiosity of the people. Keeping in mind the devotion of the people, even on an earlier occasion, on 23.06.2021, this Court had suggested that live streaming of all the ceremonies carried out at the Char Dham Shrines should be done.
The court held that the State Government cannot plead that merely because a few priests may object to the live streaming, it will succumb to their pressure. What is of paramount importance is to save the lives of the people. Hence the court ordered the live streaming of all the pujas and rituals conducted inside the temple for the benefit of the devotees.
Mr. Om Prakash was directed to inform the court if the live streaming of the Char Dham has commenced or not in the next court hearing. Mr. Amit Negi was also directed to be present before this Court on 07.07.2021.