Conflicting Interpretations of COVID-19 Guidelines by Kerala High Court: Right to Dissent Suffers, Right to Pray Triumphs – August 5 ‘Commencement of Ram Mandir’, that is beginning of reconstruction W

The Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly interpreted the directives of the Ministry of Home Affairs and the SOP issued by Ministry of Health and Family Welfare to hold that the state government’s decision to permit gatherings of up to 100 persons for religious ceremonies in places of worship is in tune with the directives of the central government. While dismissing a writ petition seeking prohibition of religious assembly in the state, the High Court upheld the decision of state government to permit Bakrid celebrations in Mosques with a congregation of up to 100 persons.

The new Unlock 3 directives issued by the Ministry of Home Affairs on July 29th contain a similar restriction on “social/ political/ sports/ entertainment/ academic/ cultural/ religious functions and other large congregations” as contained in the Unlock 2 directives issued on June 29th. The High Court interpreted this restriction in the Unlock 2 directives to hold that it will not include congregations in places of worship. The Court noted that the Unlock 1directives issued on May 30th permitted activities in “religious places/ places of worship for public” from June 8th and that it does not put any restriction on the number of persons who can gather. The Court also noted that SOP of June 4 for religious places or places of worship issued by the Ministry of Health and Family Welfare also does not impose any restriction on the number of persons, except prohibiting “large congregations” while mandating social distancing and such other conditions. The Court considered the “meaningful intent” of the central government to hold that Unlock 2 directives of the Ministry do not prohibit gatherings in religious places. Since the latest Unlock 3 directives issued on 29 July makes no relevant change regarding places of worship, the interpretation of the Kerala High Court will apply to the latest directives also.

Incidentally, the same Bench of Kerala High Court on July 15 imposed a blanket ban on all demonstrations, processions and agitations in the state till July 31. While passing the a written petition filed seeking a ban on protests, the Bench interpreted the same clause in Unlock 2 directives restricting “social/ political/ sports/ entertainment/ academic/ cultural/ religious functions and other large congregations” to hold that the restriction contained in the clause will prevail over an order issued by the state government under the Kerala Epidemic Diseases Ordinance, 2020 permitting protests and demonstrations by up to 10 persons, with prior permission.

Hence, the Court interpreted the order of state government permitting religious congregation with an upper limit of 100 persons as imposition of a more stringent restriction than prohibition of ‘large congregations’ found in the Unlock 2 directives and the SOP of June 4. However, it interpreted the order of state government permitting protests by up to 10 persons as violative of the prohibition on ‘large gatherings’ found in the same Unlock 2 directives and the annexure I therewith.

The Central Government guidelines do not contain a blanket ban on political protests, but it prohibits large gatherings. The Court, by adopting an interpretation that is inconsistent with its own subsequent judgment, has imposed a blanket ban all types of physical protests, demonstrations, processions and agitations in the state. It is a matter of concern that even the opposition parties have not come forward to challenge the order. The right to dissent through peaceful protests and demonstrations is essential for a healthy democracy. While ensuring a healthy citizenry, the health of our democracy ought not to be compromised.