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Lord Krishna in the holy Hindu scripture Bhagvad Gita, tells his disciple Arjun ‘हे अर्जुन। मैं समस्त जीवों के हृदय में स्थित परमात्मा हूँ। मैं ही समस्त जीवों का आदि, मध्य तथा अंत हूँ। (Dear Arjun, I am the god residing in the heart of every living being. Of all creations, I am the beginning and the end and also the middle.)
In this verse (and in many other verses), Lord Krishna tells Arjuna that he is present in the heart of every creature and in every atom of the universe. Despite the Lord’s omnipresence, we often look for her/him in a religious place of worship. For the Hindus it is a temple, for Christians a Church, Gurudwara for Sikhs, Mosque for Muslims etc. Visiting these religious places has almost become a part of these religions and arguably an essential feature. However, the Covid-19 pandemic halted these visits as the governments across India prohibited physical visits to religious places, given the fear of mass transmission of the virus. Most of these religious sites switched to online worship wherein the devotees could watch the live stream of prayers.
Recently, a petition was filed before the Delhi High Court challenging this bar to physical visits, citing a violation of the Right to Freedom of Religion under Article 25 of the Constitution of India (Distress Management Collective v. Govt. of NCT of Delhi, W.P. 10169/2021). The petitioner made an interesting argument that online worship does not provide the same experience, which reminded me of a Scottish case on this very point. Earlier this year, the Court of Sessions in Scotland, heard a petition challenging a similar ban on physical visits in Churches of Scotland.
The Court there concluded that physical congregation (inter alia for the purposes of corporate worship, communion, baptism etc.) is an essential part of the Christian faith. Since these rituals/ceremonies could not be performed online, the physical bar prevented citizens from practising and manifesting their faith. The Court ultimately struck down the bar citing a violation of the Freedom of Thought, Conscience and Religion under Article 9 of the European Convention on Human Rights. What was noteworthy about the judgment was the Court’s willingness to answer the unique question of whether physical worship is an essential part of the Christian faith, despite the government’s assurance of resuming it. The Court had observed,
‘It is of course now well known that the respondents have stated an intention to permit public worship with effect from 26 March 2021, and so, at least if that statement of intention is made good, the outcome of this case will have little immediate practical effect in the short term. Nonetheless, the issues raised are of importance, since there have been previous church closures; and for aught yet seen, there may be future lockdowns.’
In my opinion, the Scottish Court’s willingness to settle the question given its resurgence in future is admirable. Often the Courts leave important questions unanswered, hoping to take them up when a similar incident arises in future. Adjudicating such questions takes time and often delays the eventual relief to a litigant. The Delhi High Court seems to have taken this route as instead of resolving the question i.e., whether online worship is essential to the religion? Or a violation of Article 25? The Court merely gave orders to the government to consider the petitioner’s request.
While the question is left open for a future day, I sincerely hope that the Court answers this interesting proposition. Article 25 of the Constitution guarantees every person the Right to Freedom of Conscience and Free Profession, Practice and Propagation of Religion but the right is subject to the ground of health and other fundamental rights. For a challenge to a physical bar to succeed, the petitioners will have to prove that the government’s concern for health is not grave enough to justify an intrusion to their religious rights or that there are other less restrictive alternatives that can be used instead of a complete physical bar. The rights under Article 25 are also subject to other fundamental rights which includes the Right to Health (recognised under Article 21 – Right to Life) of other people i.e., the Right to protection from a mass transmission of Covid. Therefore, if unfortunately, a Covid third wave hits India, it is highly unlikely that a Right to Religion argument would succeed against such physical bars.
The desire to insist on physically visiting religious places brings me back to Lord Krishna, who said that I am in every atom and particle. If that is so, why do we obsess over confining him to a temple?
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