Uttarakhand High Court
WPPIL/58/2020 on 28 June, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH
CHAUHAN
AND
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
Writ Petition (PIL) No. 58 of 2020
Writ Petition (PIL) No. 97 of 2019
Writ Petition (PIL) No. 50 of 2020
Writ Petition (PIL) No. 51 of 2020
Writ Petition (PIL) No. 67 of 2020
Writ Petition (PIL) No. 70 of 2020
Writ Petition (PIL) No. 61 of 2021
28TH JUNE, 2021
Mr. Shiv Bhatt, the learned counsel for the petitioner in WPPIL
No. 58 of 2020 and WPPIL No. 77 of 2021.
Mr. Piyush Garg, the learned counsel for the petitioner in WPPL
No.51 of 2020.
Mr. Dushyant Mainali, the learned counsel for the petitioner in
WPPIL No. 50 of 2020.
Mr. Abhijay Negi, the learned counsel for the petitioner in WPPIL
No.97 of 2019.
Mr. S.N. Babulkar, the learned Advocate General assisted by Mr.
C.S. Rawat, the learned Chief Standing Counsel for the State of
Uttarakhand.
Mr. Rakesh Thapliyal, the learned Assistant Solicitor General for
the Union of India.
COMMON ORDER:(per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan)
On 23.06.2021, this Court was informed that
the Government had issued a Government Order dated
20.06.2021, 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.
2. 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. This Court had also
directed Mr. Om Prakash, the learned Chief Secretary,
and Dr. Ashish Chauhan, the learned Additional
Secretary, Culture and Religious Affairs Department, to
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inform this Court with regard any decision taken by the
Cabinet on the said subject on the next date.
3. Consequently, Mr. Om Prakash, the learned
Chief Secretary, Mr. Dilip Jawalkar, the learned
Secretary, Tourism, Dr. Ashish Chauhan, the learned
Additional Secretary, Culture and Religious Affairs
Department, are present in the virtual court through
video conferencing.
4. Dr. Ashish Chauhan has submitted an
affidavit with regard to the decision taken by the
Cabinet on 25.06.2021, and with regard to the SOP
issued by the Government on 26.06.2021, and with
regard to other arrangements being made at the Char
Dham. The said affidavit shall be taken on record.
5. The issue before this Court is whether under
the present circumstances, and the circumstances
which are likely to occur in the near future, the Char
Dham Yatra should be re-opened or not? For, according
to the decision of the Cabinet dated 25.06.2021, the
Cabinet has decided to permit the opening of the Char
Dham Yatra from 01.07.2021, to the limited extent that
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residents of the districts of Chamoli, Rudraprayag, and
Uttarakhand would be permitted to visit the temples
within their respective districts.
6. In order to understand the controversy
holistically, it is essential to consider the history of
COVID-19 pandemic, to see its development, to
consider the devastation it has caused, to examine the
emergence of new variants of the virus, the nature and
characteristics of these new variants, the scope and the
extent of the new variants, the consequences of these
variants on human health, and then to consider
whether the State of Uttarakhand is prepared to tackle
the possible emergence of the third wave of COVID-19
or not? For, the issue is not just limited to opening of
pilgrimage sites, but the issue is more importantly
about the human lives, about the people of the State,
and about the people of the nation. In fact, since the
world is a small planet, viruses tend to escape from one
country and affect the other nations. Therefore, the
issue before this Court is not a regional one, but a
global one. Therefore, this issue cannot be decided in a
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myopic manner. It has to be determined with a catholic
vision.
7. In 1918, the Spanish Flu came to India in
three waves. After the Spanish Flu subsided and
disappeared from the world, mankind thought that it
was delivered and was saved from an apocalypse. From
1918 till December, 2019, we thought all of us were
safe and sound; we could lead our lives in a normal
manner. However, from December, 2019, the
International media informed the world that COVID-19
has struck Wuhan province in China. According to the
experts, the said virus was going to spread throughout
the world. Therefore, alarm bells were rung across the
five continents.
8. Even before we were ready to face the
pandemic, in March, 2020, considering the emergence
of COVID-19 pandemic, in the interest of the people at
large, the Central Government announced a national
lockdown. This was the first wave of COVID-19
pandemic to strike the country. The first wave was
caused by the Coronavirus, or by the Alpha variant. The
first wave peaked between August and September,
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2020; it began its decline at the end of September,
2020. By December, 2020, we were assured that we
had beaten the COVID-19 pandemic. Slowly but surely,
the country started re-opening itself, State by State,
city by city.
9. However, the COVID-19 second wave caught
all of us unaware. For, new mutant namely, "the Delta
variant", had emerged. While the first wave was caused
by variant, called 'Alpha varient, by February and
March, 2021, the Delta variant had crept in. The second
wave had begun.
10. Needless to say, the second wave struck the
country like a tsunami. It not only killed about three
lakhs people in the country, but in its wake it has also
left devastated families, and orphaned children. It
reached its zenith in April and May, 2021. During that
period, neither the lifesaving medicines were available,
nor the oxygen tanks were available, nor sufficient
numbers of bed were available, nor sufficient numbers
of ambulances were available. The health care system
began to crumble. Consequently, people had to run
from pillar to post for seeking and begging only to be
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saved from the second wave. 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 satellite images of May, 2020,
and the International Media continued to show the
endless number of pyres which were burning, and the
pitiable condition of our people.
11. According to the experts, one of the great
contributory factors for the steep rise in the second
wave was the ill-decision to hold Kumbh Mela at
Haridwar between 01.04.2021 to 30.04.2021.
According to the media reports, about 57% of deaths in
Uttarakhand itself, which occurred in May, 2021, were
due to holding of the Kumbh Mela in April, 2021.The
pictures of Kumbh Mela not only embarrassed the
entire country, but also shocked the world community.
12. 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
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wave, although fortunately the second wave is on the
decline.
13. The Scientists tell us that there is no way in
determining, or in forecasting as to how many waves
would continue to strike our shores. Already since April,
2021, Netherlands and France are facing the third wave
of COVID-19 pandemic. The United Kingdom has
already entered the third wave. Concerned with the
emergence of the third wave, on 25.06.2021, Australia
has declared a lockdown. Bangladesh has imposed a
lockdown today itself. Therefore, every country is trying
to protect itself from the possible assault of the third
wave.
14. According to Dr. Randeep Guleria, the
Director of the All India Institute of Medical Science,
New Delhi, the third wave of COVID-19 infection is
"inevitable". According to him, due to the crowd in
public places, there shall be no escape from the third
wave. According to Professor K. Srinath Reddy, the
Director, Public Health Foundation of India (PHFI), India
will "definitely face the third wave of infection".
According to Dr. S.K. Sarin, the Director of Institute of
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Liver and Biliary Sciences, New Delhi, "variants can
breach the antibodies generated by the vaccine and the
vaccine currently being administered may not offer
sufficient protection against new mutant strains".
Therefore, the scientific community, the experts, are
continuously warning our country to be aware of the
emergence of the third wave of COVID-19, which may
come knocking at any time. Although, the experts claim
that the third wave is likely to hit the country in the
second or third week of August, 2021, but there is no
such guarantee that it would not inflict the country
prior thereto.
15. In the recent months, a new variant of the
COVID-19 has been discovered, called the "Delta plus
variant". About a week back, on 23.06.2021, this Court
had noticed that the Central Government had
announced that the Delta plus variant has been
detected in Madhya Pradesh, Maharashtra and Kerala.
Therefore, the Central Government had directed the
State of Maharashtra to ensure containment zones in
two of its districts. Just in one week's time, the delta
plus variant has been discovered in eleven states of the
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country. Therefore, just in one week, the delta plus
variant has accelerated speedily from three states to
eleven states. This is a phenomenal increase of the
Delta Plus variant.
16. According to the experts, the delta plus
variant has four characteristics: firstly, it is immune to
the vaccine which have been administered to the
people at large. Therefore, even the vaccinated person
will not be protected from the delta plus variant.
Secondly, it directly and adversely affects the lungs. In
fact, according to many, the lungs tend to dissolve
within a period of three days. Thus, it not only leads to
respiratory problems, but also brings about a swift
death of the patient. The chances are that within three
days, the patient will be dead. Thirdly, in order to treat
the delta plus variant patient, and to stop the death of
the patient, a longer period of hospitalization is
necessary, than was necessary in the second wave
caused by the "delta variant". Fourthly, the "delta plus
variant" has a faster speed of transmission from one
person to another. Therefore, its spread is going to be
faster than the spread of "delta variant", which took
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about nine months to spread its wings. Hence, the
tentacles of "delta plus variant" will not only spread
faster, but would also spell the death of the patient at a
faster rate.
17. Keeping in mind the grim emergence of the
third wave, keeping in mind its rapid transmissible
speed, keeping in mind the strained health care system
available in the country, the Central Government is
repeatedly directing all the states to avoid the
gathering of crowds, and certain States have been
directed to re-establish containment zones. A few
states, in fact, have extended the lockdown period in
order to prevent the emergence of the third wave.
18. According to the newspaper report dated
27.06.2021
, a woman, who had already undergone
complete vaccination in district Bikaner, in Rajasthan,
was discovered to be carrying the delta plus variant.
She was discovered to be asymptomatic. But as she
was discovered to be a carrier of delta plus variant, she
has been placed immediately under medical treatment
by the Government. This is a burning example that a
delta plus variant may breach the firewall of
inoculation, and adversely affect the human body.
19. The inoculation rate of Uttarakhand State is
certainly not a happy one. Out of population of 1.32
crores, by the end of May, 2021 only 35,36,840
persons have been inoculated. Out of these, while
21,72,760 have received the first doze, merely
6,82,040 have received both the dozes. Thus,
obviously, a majority of persons who have received the
vaccination are those who have received just the first
doze, and not the second one.
20. According to the experts, it will still take
eighteen months to vaccinate 70% of the population in
Uttarakhand. Thus, even if 100% population of
Uttarakhand were to be inoculated, even then there is
no guarantee that the people of Uttarakhand will be
protected from the invasion of delta plus variant.
21. Considering the data available from
Uttarkashi, Rudraprayag, and Chamoli districts, the
Uttarkashi district has a population of 3,76,298, out of
whom, so far, only 1,57,697 persons have been
inoculated. Out of this number, 1,17,529 have received
the first doze; merely 40,168 persons have received
both the dozes.
22. Similarly, in Rudraprayag district, having a
population of 2,76,205, only 1,18,975 have been
vaccinated. Out of these, while 1,01,081 persons have
received their first doze; merely 17,894 persons have
received both the dozes.
23. Likewise, district Chamoli has a population of
about 4,46,430 persons. Out of this population, only
1,65,141 persons have been inoculated. Out of this
figure, 1,33,256 persons have received the first doze;
merely 31,885 persons have received both the dozes.
Thus, obviously, even in these three specific districts,
where people will be permitted to visit the respective
shrines in their respective districts, not even 50% of
the population has been inoculated. In fact, the
majority of the population has been given only the first
doze. Thus, the majority of the people are still waiting
for the second doze to be administered. Hence, their
immunity system is not strong enough to fight with the
third wave of COVID-19 pandemic.
24. A bare perusal of the affidavit filed by Dr.
Ashish Chauhan, clearly reveals that by its decision
dated 25.06.2021, the Cabinet has decided to permit
the people living in Uttarkashi, Rudraprayag, and
Chamoli distrits 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 Kawad Yatra
is a pilgrimage undertaken by people who carry water
on their shoulders in order to pour the holy water on
the deity once they reach the temple. The Kawad Yatra
is a popular yatra in Uttarakhand which inspires
thousands of pilgrims to undertake their journey, on
foot, to reach the temples. But considering the crises
which can be brought about by the Kawad Yatra, the
Cabinet has decided to prohibit the same for this year.
25. Along with the affidavit, Dr. Ashish Chauhan
has also submitted the SOP dated 26.06.2021.
Although the SOP is a detailed one, but as admitted by
Mr. Om Prakash, the learned Chief Secretary, the SOP
is very similar to the SOPs that were issued by the
Government during the holding of the Kumbh Mela.
Therefore, even the SOP issued during the Kumbh Mela
was equally elaborate, equally detailed, and equally
reassuring that the precautions for containing COVID-
19 pandemic would be strictly followed by the pilgrims.
Repeatedly, before this Court assurances were given by
the learned Chief Secretary, by the learned Secretary,
Medical Health and Family Welfare, and by the learned
Mela Adhikari, that the SOPs shall be implemented in
"the strictest manner". Yet, 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. In fact lakhs of people were permitted to
gather on the banks of the holy Ganges, and to take
their bath day in and day out, while the Kumbh Mela
lasted for a month. On the days of Shahi Snaan, the
crowd surged; the SOPs were observed more in breach,
than in adherence.
26. Even recently, on 20.06.2021, on the
occasion of Ganga Dusshera, a crowd of more than one
lakh was permitted to congregate at Har ki Pauri in
Haridwar, and to take the bath in the holy Ganges.
Even on the occasion of Ganga Dusshera, the crowd
failed to adhere to the SOP; the Civil Administration of
Haridwar equally failed to ensure that the SOP is
"strictly implemented".
27. Recently, in Nainital district, the Government
has opened the gates of Neem Karoli Baba Temple
(Kainchi Dham). According to the local newspapers,
"thousands and lakhs of people" poured into the small
temple. Again the SOP was totally violated by the
pilgrims. Again the Civil Administration failed to carry
out its duties, and to ensure that the SOP would be
followed. 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".
28. This is the fourth occasion that the State
Government is promising that the SOP dated
26.06.2021 would be implemented "strictly". The SOP
clearly states in Hindi "कड़ाई से अनुपालन सुिनि त कराया जायेगा".
Although the SOP lays down a large number of dos and
don'ts to be observed by the pilgrims, by the travel
tour operators, by the restaurants, and by the hotels,
but there is no indication as to who would ensure that
each and every condition prescribed by the SOP would
be followed in toto. For example, according to the SOP,
there shall be a ban on "gutka", "pan" and "tobacco".
However, there is no indication as to how, in a crowd of
300 to 600 persons, people would be prevented from
chewing "pan", "gutka" or "tobacco"? Although, it is
claimed that the pilgrims will be asked to use the
sanitizers repeatedly, or to use the soaps repeatedly, it
is absolutely unclear as to who would ensure that the
pilgrims have, indeed, sanitized their hands?
29. The SOP further claims that there shall be
testing labs established at the Char Dham. But how
many such testing labs will be established? Or who
would carry out these tests, especially considering the
fact that there is a dearth of technical staff in the
State? And how soon the results of the tests would be
available? These issues are absolutely unclear.
Although the SOP claims that "those, who are working
at the accommodation provided to the pilgrims, would
be vaccinated", it is unclear whether they would be
vaccinated with both the doses, or just with a single
dose? As mentioned hereinabove, more than 50% of
the residents of the three districts of Uttarkashi,
Chamoli and Rudraprayag are yet to be vaccinated by
the Government.
30. The SOP further claims that those affected by
COVID-19 will be kept in isolation wards. However, it is
unclear as to how many isolation wards have been
created in each of the specific Char Dhams?
Interestingly, according to the report submitted by the
District Magistrate of Gangotri and Yamunotri, although
it is claimed that a forty bedded additional COVID
Dedicated Unit would be established at CHC,
Chinyalisaur, it would not be established till
30.07.2021. Ironically, on the one hand, there is lack
of medical facilities throughout the State, as the health
care system in Uttarakhand is in deplorable condition,
ironically even sufficient facilities will not be created till
30.07.2021, yet the Cabinet has taken a decision to
permit the pilgrims to visit the shrines from
01.07.2021.
31. While dealing with the sufficiency of medical
infrastructure available in the State, on previous
occasion Mr. Amit Negi, the learned Secretary, Medical
Health and Family Welfare, had frankly admitted, and
in the view of this Court rightly so, that although there
are eight ventilators available at Rudraprayag, the
district where the temple of Kedarnath exists, six of the
ventilators are dysfunctional. Although the District
Hospital at Rudraprayag does have six Oxygen
Concentrators, four are dysfunctional. Moreover, the
list of ambulances given in the affidavit filed by Dr.
Ashish Chauhan, clearly reveals that no ambulance is
being provided on the treks, which would be used by
the pilgrims. Even the Government Hospital at Tilwara
has a single ambulance; the Government Hospital at
Guptkashi has a single ambulance; one Hospital at
Phata has a single ambulance; the medical facility
available at Sonprayag also has a single ambulance;
similarly, at Gauri Kund, there is a single ambulance.
Further, at Tilwara Government Allopathic Hospital,
there are only two Oxygen Tanks, and two Oxygen
Concentrators. Again, at Phata there are only two
Oxygen Tanks, and two Oxygen Concentrators.
Similarly, at Sonprayag, there are two Oxygen Tanks
and two Oxygen Concentrators. Whether these Oxygen
Concentrators are functional, or not, is unclear?
Although, it is claimed that at Kedarnath there are
nineteen ambulances, it is unclear as to how many of
them are Advanced Life Saving Ambulances, and how
many are Basic Life Saving Ambulances? Thus, it is
clear that even the medical facilities that are being
provided to pilgrims are too little, and therefore may be
too late.
32. The affidavit is absolutely silent on two
essential issues. Firstly, whether the pilgrims would be
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, considering the fact that on
16.06.2013, Kedarnath had witnessed a disastrous
tragedy, where 5,748 persons lost their lives, the
affidavit is absolutely silent on the point as to what
arrangements are being made, have been made, or will
be made in case any natural calamity strikes any of the
four Char Dham shrines?
33. It is common knowledge that during the
monsoon period, the State witnesses unprecedented
landslides, and unpredictable cloudbursts. Already,
according to the media reports, roads leading to the
Char Dhams are in terrible shape. Therefore, it would
be equally difficult, if not impossible, to evacuate the
pilgrims, who may gather at the Char Dhams.
34. According to the SOP prepared by the State
Government, 600 persons per day would be permitted
to gather at the Badrinath shrine, 400 persons per day
would be permitted to gather at the Kedarnath shrine,
300 persons per day would be permitted to gather at
the Gangotri Dham, and 200 persons per day would be
permitted to gather at the Yamunotri Dham. These are
persons, who would be permitted to have "the
Darshan" inside the respective temples. There is no
indication as to how many people would be permitted
to gather in the respective towns of Badrinath,
Kedarnath, Gangotri and Yamunotri. Therefore, a
distinct possibility does exist that more people will
enter the towns than the limited number of persons
permitted to enter the shrines. Thus, a great possibility
does exist that a large number of people may be
stranded, or may even die, if a natural calamity like a
cloudburst, heavy rains, or landslides were to strike.
Despite the past experience of the Kedarnath tragedy,
which took place in the State on 16.06.2013, the SOP is
absolutely silent about the natural calamity, which may
strike without any prior indication, or notice.
35. A similar question, as the present one, was
also raised with regard to permitting the Rath Yatra at
Puri during the Rath Yatra Festival, which is annually
observed in Odhisha. Considering the fact that at the
relevant time, India was tackling the first wave of
COVID-19 pandemic, in the case of Odisha Vikash
Parishad v. Union of India & Ors., [(2020) 7 SCC
264], the Hon'ble Supreme Court had directed the
State of Odhisha "to ensure that all entry points into
the city of Puri, i.e., airports, railway stations, bus
stands, etc., shall be closed during the period of Rath
Yatra festival in order to prevent people from joining
the Rath Yatra". The Hon'ble Supreme Court had
further directed the State Government "to impose a
curfew in the city of Puri on all the days, and during all
the time when Rath Yatra chariots are taken in
procession." Moreover, the Hon'ble Supreme Court
directed that "the State Government may also impose
curfew in the city of Puri on such other days, and
during such time as deemed necessary." The Hon'ble
Supreme Court clearly directed that, "during the period
of curfew no one would be allowed to come out of their
houses or their places of residence, such as, hotels,
lodging houses, etc." Therefore, considering the health
issues involved, considering the impact of the COVID-
19 first wave, the Hon'ble Supreme Court ensured that
the local people would not join the Rath Yatra.
Interestingly, the people of the Puri city were prevented
from joining the Rath Yatra.
36. Moreover, Mr. Shiv Bhatt, the learned
counsel for the petitioner in Writ Petition (PIL) No. 58
of 2020, submits that the Hon'ble Supreme Court, in its
order passed in Suo Motu Writ Petition (Civil) No.3
of 2021 dated 30.04.2021, has urged the Central and
the State Governments "to consider imposing a ban on
mass gatherings and super spreader events". Yet, the
decision of the Hon'ble Cabinet dated 25.06.2021 would
not only permit the people of Badrinath, Kedarnath,
Yamunotri and Gangotri to congregate at the shrines,
but would also permit the people of the respective
districts to gather at their respective temples. Thus, the
Cabinet decision contravenes the directions issued by
the Hon'ble Supreme Court.
37. Furthermore, the decision taken by the
Hon'ble Cabinet on 25.06.2021 is patently against the
warnings, which are being given by the experts
throughout the country, the warnings, which have been
quoted hereinabove. Moreover, the decision is also
against the directions of the Central Government which
has been directing the States to control and prevent
the spread of the third wave. Further, the decision is
also against the practice of extending the lockdown as
observed by the other States.
38. 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.
39. 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.
40. In the Note submitted to the Cabinet, the
reasons given by this Court, for requesting the Cabinet
to reconsider its decision for opening the Char Dham
Yatra, were equally stated. However, the Cabinet has
not only ignored those reasons, but has also ignored
the warnings given by the scientific community, ignored
the directions issued by the Central Government, and
ignored the directions issued by the Hon'ble Supreme
Court, where the Hon'ble Supreme Court has been
directing the States to ensure that there is no gathering
of crowds. 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.
41. 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.
42. There is, thus, a strong prima facie case in
favour of the people, for not permitting the Char Dham
Yatra, even in a limited manner. For, the lives of the
people may be exposed to the danger of the Delta Plus
variant, and to the third wave of COVID-19. If the Char
Dhar Yatra were permitted, we would again be inviting
a catastrophe.
43. In case we were to consider the balance of
convenience, whether the balance of convenience tilts
in favour of the Char Dham Devasthanam Board, which
is consistently demanding that the Char Dham Yatra
should be opened, or it tilts in favour of the public at
large, whose lives may be jeopardised, and whose
families may be shattered forever, obviously the
balance of convenience is in favour of the people at
large. For, in case gathering of 600 or 400 persons per
day were to spread the Delta Plus variant, there are no
means and ways to stop the spread of this terrible
virus.
44. The Delta Plus variant may again claim the
lives of lakhs of people across this country. The loss of
a family member, and as pointed out by the Scientific
Community that the victims of the third wave would be
children, the loss of a child is painful not only to the
parents, but also to the nation at large. In case the
Delta Plus variant is permitted to play havoc with the
lives of our children, the nation is bound to lose a part
of its next generation. Such an apocalypse would
adversely affect the growth, and the progress of the
entire country. Hence, the Char Dhar Yatra will
invariably cause irreparable losses to the people and to
the country.
45. 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.
Hence, ordered accordingly.
46. Technically, it may be argued that the
decision dated 25.06.2021 is not under challenge
before this Court. Thus, it cannot be stayed by this
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 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.
47. During the pendency of the present petitions,
initially, the Cabinet had taken a decision on
20.06.2021 to open up the Char Dham Yatra in a
phased manner. At the request of this Court, the
Cabinet has reviewed its decision. While it has not
taken any concrete decision with regard to the second
phase, it has reiterated its decision with regard to the
first phase. Thus, the decision dated 25.06.2021 is a
further step taken by the State Government. Therefore,
it is imperative that this Court must consider whether
the said act would aggravate or lessen the impact of
COVID-19 or not? Having concluded that the decision of
re-opening the Char Dham Yatra would lead to inviting
a calamity, it is in these circumstances that this Court
is compelled to stay the part of the Cabinet decision
dated 25.06.2021. The said stay is strictly in the
interest of public, and in the interest of justice.
48. This Court is 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.
49. Mr. Om Prakash, the learned Chief Secretary,
submits 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.
50. Mr. S.N. Babulkar, the learned Advocate
General for the State of Uttarakhand, submits 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.
51. Since our ancestors were unaware of the
development of a technology that would permit live
streaming, the possibility of our Shastras prohibiting
live streaming of a religious ceremony is absolutely
impossible.
52. Moreover, the "darshans" of deity are to be
taken to as large an audience as possible. Therefore,
live streaming would permit the devout people to have
"darshan" of the deity in the comfort and safety of their
homes. Moreover, live streaming is already being done
by other temples across the country. The ceremonies
being performed in different temples in different parts
of the country are broadcast by various T.V. channels.
Therefore the argument that live streaming may be
prohibited by our shashtras is clearly unacceptable.
53. Secondly, needless to say, it is for the State
Government to decide whether the live streaming
should be carried out or not? The decision cannot be
left to the Char Dham Devasthanam Board, or to the
priests of an individual temple. For, it is the
constitutional duty of the State to protect its people
from a pandemic. Therefore, the decision cannot be left
either to the Board or to the Priests. Even if, there is an
objection from a minority of priests, the said objection
can easily be overruled by the State.
54. In catena of judgments, the Hon'ble Supreme
Court has clearly observed that the argument taken by
the State Government that it cannot control either a
large crowd, or the unruly mob, does not lie in the
mouth of the State Government. For, to argue the
same, the State Government admits its inability to
enforce the rule of law.
55. Therefore, 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. It is, indeed, trite to state that when there
is a conflict between the right of an individual, and the
right of a community, the latter will always take
precedent over the former.
56. Hence, in the interest of the people, this
Court directs the Government to ensure that the
ceremonies, the pujas and archanas, carried out within
the sanctum sanctorum of the Char Dham temples, are
live streamed for the benefit of the people at large. The
Government should make sure that the live streaming
is done throughout the country, so that the devotees
may not only witness the deity, but may also pray to
the same. The live streaming should be carried out as
expeditiously as possible, and preferable within seven
days of the receipt of the certified copy of this order.
57. Mr. Om Prakash, the learned Chief Secretary,
Mr. Dilip Jawalkar, the learned Secretary, Tourism, and
Dr. Ashish Chauhan, the learned Additional Secretary,
Culture and Religion Affairs Department, are directed to
inform this Court on the next date whether the live
streaming of the Char Dham has commenced or not?
58. Mr. Amit Negi, the learned Secretary, Medical
Health and Family Welfare, is also directed to be
present before this Court on 07.07.2021.
59. List this case on 07.07.2021.
_____________________________
RAGHVENDRA SINGH CHAUHAN, C.J.
___________________
ALOK KUMAR VERMA, J.
Dt: 28th June, 2021
NISHANT
