New Delhi: The Uttarakhand high court on Monday stayed the state government’s decision to allow locals of three districts to participate in the Char Dham yatra from July 1, saying it could lead to a new surge in COVID-19 cases, like with the Kumb Mela during the second wave.
Bluntly, the court observed that if the Char Dhar yatra is permitted to be held, “we would again be inviting a catastrophe”.
A bench of Chief Justice Raghavendra Singh Chauhan and Justice Alok Kumar Verma, hearing a bunch of petitions on the availability of health infrastructure in the state, took a prima facie view that the decision to allow the yatra is arbitrary, unreasonable and violative of Article 14 of the constitution of India.
According to LiveLaw, the court stayed the order for a period of four weeks, but said that any religious ceremonies like archanas or pujas that are conducted during this period should be live-streamed for the benefit of the people.
The Uttarakhand government had on June 25 decided to start the Char Dham yatra from July 1 for locals in the districts of Chamoli, Rudraprayag and Uttarkashi, where the four shrines are located. It had postponed the yatra from being held in May, during the peak of the second wave.
In view of this decision, the court said that though the second wave of COVID-19 is on the wane, there is the possibility of a third wave hitting the nation. Observing that by December 2020, many Indians were of the opinion that the pandemic had abated. Consequently, the “second wave struck the country like a tsunami”.
The bench recollected the devastation caused by the second wave, saying “neither the lifesaving medicines were available, nor the oxygen tanks were available, nor sufficient numbers of bed[s] were available, nor sufficient numbers of ambulances were available”.
“It is common knowledge that as people began to die, there were insufficient spaces in our crematorium and burial grounds. People could not perform a decent cremation, or decent burial to our lost brethren.”
The court said that experts were of the opinion that the Kumbh Mela was “one of the great contributory factors” for the steep rise in cases during the second wave, describing the government’s move to hold the religious gathering as an “ill-decision”.
Noting that 57% of deaths in Uttarakhand which occurred in May 2021 were “due to holding of the Kumbh Mela in April 2021”, it said the pictures of the Kumbh Mela being held “not only embarrassed the entire country, but also shocked the world community”.
“Suddenly our country was painted as a renegade, and as an irresponsible member of international community. Suddenly, flights coming from India were stopped by other countries. Even today, we are not free from the devastation caused by the second wave, although fortunately the second wave is on the decline.”
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However, every country across the world is “trying to protect itself from the possible assault of the third wave”, the court said, noting concerns about the more infectious variants of the coronavirus, such as the Delta and Delta+.
It said that within the state, the number of people who were vaccinated is not satisfactory. In the three districts where the temples are located, “not even 50% of the population has been inoculated”, the court said. A majority of the people who have received the vaccine have only got one dose, it said.
Hindu devotees take a holy dip in the Ganges River during Shahi Snan at “Kumbh Mela”, or the Pitcher Festival, amidst the spread of the coronavirus disease (COVID-19), in Haridwar, India, April 14, 2021. Reuters/Anushree Fadnavis
Skeptical about SOP being implemented
While the state government has issued a standard operating procedure (SOP) to ensure that the yatra would be held in accordance with COVID-19 guidelines, the court was skeptical. It said that the SOP issued before the Kumbh Mela “was equally elaborate, equally detailed, and equally reassuring”, but it was not implemented.
“[D]espite 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.”
The high court also noted other religious gatherings, such as the Ganga Dussehra in Haridwar and the opening of the gates of Neem Karoli Baba Temple in Naintal, where similar SOPs were not implemented strictly.
“In fact, no punitive action has been taken against the violators. Therefore, we have three glaring examples where the state government has permitted the people to congregate in a large number, and has permitted them to flout the SOP, despite the repeated assurances of the government before this court that the SOP shall be followed and implemented ‘strictly’,” the court noted.
The court said that this is the fourth occasion that the state government is promising that the SOP would be implemented “strictly”. It expressed skepticism about who would ensure that the guidelines are followed, or if the state government’s promise to establish more testing labs in the three districts was realistic. It also noted that in these three districts, the medical infrastructure is insufficient if a surge in COVID-19 cases is reported.
The court said that the cabinet decision is “patently against the warnings, which are being given by the experts throughout the country” and also the directions of the Union government “to control and prevent the spread of the third wave”.
“In the present circumstances, the decision of the Cabinet is prima facie arbitrary and unreasonable. Hence, it is prima facie violative of Article 14 of the Constitution of India,” the court said.
The cabinet should have realised that SOPs are “flouted by the people, and the civil administration does not have the wherewithal” to implement them in sensu stricto (strictly speaking).
The balance of convenience tilts in favour of the public at large, the court said, as it is their lives which may be jeopardised and “families may be shattered forever”.
It concluded:
“[A]ll 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 [cabinet] decision … vis-à-vis the opening of the Char Dham Yatra for the residents of … 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 noted that since it was dealing with petitions about the availability of health infrastructure in the state, it may technically be argued that the decision to stay the yatra “is not under challenge” and this cannot be stayed by the court.
“However, technicalities of law cannot come in the way of protection of the people. The writ petitions deal with the ways and means of containing the spread of [the] COVID-19 pandemic. The plea raised by the petitioners is that the state is unprepared to tackle the said pandemic. Therefore, over a period of time, this court has been monitoring the steps taken by the state government for containing the spread of COVID-19 pandemic. Hence, there has been supervision through a continuous mandamus over the acts and omissions of the state government,” it said.
State government may appeal decision
According to the Indian Express, the state government may appeal the high court’s decision in the Supreme Court.
Indeed, hours after the court passed this order, an SOP was issued by the state government, which said that the first phase of the Char Dham yatra will start from July 1 for residents of Chamoli, Rudraprayag and Uttarkashi districts. Pilgrims should have an RTPCR, TrueNat or rapid antigen test which shows that the person does not have COVID-19, the SOP says, according to the newspaper.
The order said that for the second phase, which will begin from July 11, residents of Uttarakhand will be allowed to visit all four shrines if they have a negative COVID-19 report and that a detailed SOP will be issued separately.