This article has been authored by Swati Singh, a third-year student at National University of Study and Research in Law, Ranchi
In the modern welfare state, the key role of the government is to act as a protective mechanism for the rights of the individuals and promote social welfare. But in cases where one right is being abrogated for protecting the other, that’s where the real problem arises. In India, a nationwide lockdown was imposed to curb the spread of the COVID-19 pandemic. The debate about right to health versus the freedom of religion arose when the topic of re-opening of religious institutions came up amid the COVID-19 pandemic, as part of the unlocking scheme.
Those against the reopening of the religious institutions argue that the maintenance of public health should rank high as these are indispensable to the very physical existence of the community and the ability of the State to act in the public interest is an essential part of Article 25. The right to religious freedom must be construed harmoniously with other fundamental rights.  Others side advocates that “Mens sana in corpora sano”,i.e., a rational mind in a healthy body is a basic right and since the pandemic has affected the mental health of people, allowing religious places to reopen can help them attain spiritual peace.Their argument is that since many other kinds of institutions are opening following the standard operating procedures, such absolute restrictions on religious institutions are unreasonable.
The contentions of both the sides in relation to the opening of the religious institutions are reasonable and backed by valid concerns and ground. A rational balance needs to be struck between the protection of health versus the mental health vis-a-vis the religious freedoms of the individuals. This paper seeks to analyze the different dimensions of these issues in light of laws, factual situations and the views expressed by the courts in relation to these.
A nationwide lockdown was first imposed by the Government of India on 24th March, 2020 as a preventive step to curb the COVID-19 pandemic in India. The first lockdown came when the number of confirmed positive coronavirus cases was close to 500. Experts observed that the lockdown had very been the major factor in controlling the spread of the virus. However, taking into consideration the socio-economic factors, the lifting of the lockdown started. The government issued a set of Standard Operating Procedures and the shopping malls, religious places, hotels and restaurants were to reopen from 8 June.
Although guidelines were issued by the central government, the different states at their own discretion allowed or disallowed the opening of the religious institutions. Throughout this period, a number of cases were filled in the courts, both, for and against the reopening of the religious institutions. Those in opposition to the opening of the places of worship have contended that since it’s an emergency pandemic situation and we are dealing with an asymptomatic, invisible enemy, it is not the correct time to allow this as it can lead to greater spread of the virus. On the other hand, those in favor of re-opening of the religious institutions contend that the pandemic has affected the mental health of individuals and allowing religious places to reopen can help them attain spiritual peace and happiness.
Right to Health under the Indian Constitution
The Article 21 of the Constitution of India, grants every person, irrespective of their citizenship, the right to life and liberty. The Article 3 of the Universal Declaration of Human Rights grants the right to life, liberty and security of person to every individual. Right to life has been recognized as the most important, human, fundamental, inalienable and transcendental rights . It is widely recognized as the highest fundamental right. Public health is also a subject enumerated in Entry 6 of List II, State List in Schedule VII of the Constitution of India. In the case of Paramanda Katara v. Union of India, the Supreme Court observed that preservation of human life is of paramount importance on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man. In the Maneka Gandhi’s case, the court observed that Article 21 of Constitution has ushered a new era of expansion of the horizons of right to life. Thus, the right to life is the most fundamental to all the rights and all the other rights are derived from it.
The right to health is, thus, impliedly covered under Article 21 of the Indian Constitution. The right to health is an integral fact of a meaningful right to life . The right to life included the right to lead a healthy life so as to enjoy all faculties of the human body in prime condition. The term health implies more than an absence of sickness.Earlier, the Courts used to enforce the right to health by means of the various public interest litigations that came before it. However, gradually the Indian courts observed that right to life should also encompass other rights like the right to live with dignity the right to health, etc. The Preamble to the Constitution encompasses the core guiding values and principles of the Constitution of India and the State has to be abide by it. The state has a duty to take steps to uphold the values such as justice, equality, and dignity enshrined in the Preamble as they have a direct bearing on people’s health.
Abiding by the doctrine of ubi jus ebi remedium, it is a universal principle that where there is a right, there is a remedy. Thus, there is also a duty on the part of the government to promote and protect the health of the individuals. The Constitution of the WHO states that the enjoyment of the highest attainable standard of health is the fundamental right of an individual and this insinuates legal obligations on the States to ensure sound conditions for the enjoyment of health. In Vincent Panikulangara v. Union of India, the Supreme Court held that the maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community. In a welfare State, it is the obligation of the State to ensure the creation and maintenance of conditions congenial and appropriate to good health. The right to enjoy life as a serene experience, in quality far more than animal existence is thus recognized.
The Government has a constitutional obligation to provide health facilities.  This obligation has been recognized under Article 47 of the Constitution of India. The responsibility of protecting and safeguarding the right to health is not limited only to the medical profession but also with the public functionaries. No State has the right to take any action which will deprive a person of the enjoyment of these basic rights. In the case of Murli Deora v. Union of India and Ors., the Court prohibited smoking in public places in the entire country on the grounds that smoking is injurious to health of passive smokers and issued directions to the government to take steps as deemed necessary. The term health implies more than an absence of sickness.
Mental Health as a part of Right to health
“Mens sana in corpora sano”, is a well-known Latin saying from the Satires of Juvena (ad c. 60-c. 130) which means a rational mind in a healthy body. It was on this ideology that the Bhore Committee Report of 1946 and National Mental Health Programme, 1982 was based. The Courts through various judgments have held that the mental health is of equal importance as the physical health of the individuals and thus the obligation to protect the health of people also extends to protection of the individuals. Mental health is more than the mere lack of mental disorders and courts have also recognized the mental element of health. After 1983, Section 498-A was introduced in the Indian Penal Code to protect women against cruelty and this definition also incorporated mental cruelty. Cruelty is also a ground for divorce under the Hindu Marriage Act, 1956 and under this mental cruelty is also included.
The constitution of the WHO postulates: "Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity” and thus the significance of mental health has been recognized there. Concepts of mental health encompass elements such as subjective well-being, self-effectiveness, autonomy, and ability to comprehend one's potential. It is additionally defined as a state of well-being whereby people are competent to recognize their abilities, are able to cope with the normal stress of life, work productively, and make contribution to their communities. It is about enhancing one’s competency and to enable them to achieve their self-determined goals.
Freedom of Religion under the Indian Constitution.
The Article 25 of the Constitution of India provides the freedom of religion i.e., to freely profess, practice and propagate it and further Article 26 provides the freedom to manage religious affairs. Further, the Article 21 of the Constitution provides the right to liberty and it should also extend to people’s faith and way of life. The preamble of the Constitution, which is believed to be the core guiding principle, also talks about the liberty of thought, expression, belief, faith and worship. Thus, the freedom of religion is not only protected by Article 25 and 26, but by coming under purview of Article 21 and preamble, becomes one of the most important aspect of a person’s life.
The term ‘religion’ has not been defined in the Constitution and it can’t be defined in a water-tight compartment. The courts have given judicial definition to ‘religion’ protected under the secular provisions of India’s Constitution. The courts have differentiated ‘matters of religion’ from matters of secular interest associated with religious practices. Article 25 to Article30 and Article 325 of the Constitution of India contain the secular provisions. A freedom of religion, not only extends to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of other. For instance, if the tenets of any religious sect of the Hindus prescribe that that periodical ceremonies should be performed in a certain way at certain periods of the year, that would be regarded as parts of religion.
In the case of The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, the Court held that religion is certainly a matter of faith with individuals or communities, not necessarily theistic and that a religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being, but it would not be correct to say that religion is nothing else, but a doctrine or belief. In the case of Commissioner of Police & others v.Acharya Jagadishwarananda Avadhuta & another, the Court said that the protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies and modes of worship which are essential or integral part of religion.
What constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background etc. of the given religion. If worshippers lay great store by the rituals and they are a part of the religious faith and cannot be dismissed as either irrational or superstitious.According to B.R. Ambedkar, what constitutes a ‘religion’ or ‘matters of religion’ should be ascertained by limiting them to religious beliefs and ceremonials, which are held as essentially religious in a particular religion, which is under judicial review. 
Freedom of Religion being subject to public health
The framers of the Constitution dreamt of secular political system which would act as protective mechanism for all religions with equal regard (Sarva Dharma Samabhava). The State’s approach towards religion is one that maintains a ‘principled distance’ from religion. The state’s intervention or non-intervention in the religious practices depends upon which of the two better promotes substantive values like social order, social justice and religious harmony which are integral to a life with human dignity for all. Freedom of religion is also not an absolute right. The State has right to impose restrictions, as are required or found necessary on the ground of public order, health and morality inbuilt under Articles 25 and 26 of the Constitution of India.
In the case of the Durgah Committee, Ajmer v. Syed Hussain Ali, the Court observed that in order that a practice be treated as a part of religion, they must be regarded so by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form. The Court has held that the sacrifice of a cow on the occasion of Bakr-id day is not an obligatory overt act for a Muslim to exhibit his religious belief and there was no violation of the Muslim religious practice under Article 25 by putting a ban on it.
In the case of Afzal Ansari v. State of U.P., the Court held that Azan may be an essential and integral part of Islam but recitation of Azan through loud-speakers or other sound amplifying devices cannot be said to be an integral part of the religion, warranting protection of the fundamental right enshrined under Article 25 of the Constitution. In the case of Church of God v. KKR Majestic Welfare Colony Associations & Ors, the Supreme Court has held that no religion prescribes that prayers should be performed by disturbing the peace of others. In a civilized society in the name of religion, activities which disturb others cannot be permitted. The Court clarified that even in case of an essential practice, its adverse impact on public health and how it shall be deteriorating other’s health would have been grounds for restriction and couldn’t be allowed.
Thus, the provisions of the constitution should be construed to be in harmony with others and in cases where the freedom of religion is violating the others’ fundamental rights, it can be subject to state’s intervention.  Among these, the health, morality and public order should be given paramount importance as they are grounded in the very provision that provides freedom of religion. In Adi Saiva Sivachariyargal v. Tamil Nadu, the Court said that the duty of the State to act in the interest of the public, including to protect public health, is an essential and indispensable part of the Article 25.
Relationship between religion and mental health.
The Part III of the Constitution guarantees various rights to the people and thus simultaneously puts an obligation on the state to protect those rights. The right to life under Article 21 includes the right to health and that would certainly cover mental health too. The Constitution of the WHO states that the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being and this insinuates a clear account of legal obligations on states to ensure sound conditions for the enjoyment of health by all the individuals.
Before the 19th century, psychiatry and religion were interlinked. The responsibility for the care of the mentally ill was upon the religious institutions. In the year 1980, Albert Ellis,4 the founder of the rational emotive therapy, stated that there was an irrefutable causal relationship between religion and emotional and mental illness. In many cases where a person with suicidal thoughts didn’t attempt suicide is because of three key protective factors- integrated families, social and spiritual support. Religion serves as a great integrating force in moulding the personality and producing fully healthy mature human being.
In 1994, “religious or spiritual problems” was introduced in DSM-IV as a new diagnostic category that guided professionals to respect the patient’s beliefs and rituals. Thus, the American Psychiatric Association also recognizes the importance of religion for mental health. Researchers have looked for a relationship between religion and suicide. Religious attendance has been found to be associated with decreased suicide attempts in the general population and in those with a mental illness, independent of the effects of social supports. Religious teachings may assist in preventing suicide but other than this, social support, comfort, and meaning and peace derived from religious belief are also of importance. Public and private religious practices can help to maintain mental health and prevent mental diseases. These things assist in coping with anxiety, fears, frustration, anger, anomie, inferiority feelings, despondency and isolation.
Reasons for keeping the religious institutions closed.
In the present emergency situation, the number of deaths due to the COVID-19 has been substantial and taking into consideration the nature of the coronavirus, social distancing is very important. This also shows that the presence of the Standard operating procedures alone is also not able to stop the virus. Currently we are dealing an asymptomatic and invisible, infectious enemy and thus it is very much important to maintain social distancing. The virus may spread, not only by the persons testing positive but also by people who are acting as carriers and they may otherwise seem perfectly fine. In these unprecedented times, since physical closeness is seen as a source of spiritual solidarity, it comes with the risk public health crisis.
In case of Mubeen Farooqi v. State of Punjab & ors., the Court said to safeguard the health of the society, restrictions are important. Merely because restrictions had been relaxed in certain areas, it could not be a ground to relax the same for religious places of worship and said that restrictions are in collective interest of the society at large. Freedom to religion is subject to public order, morality and public health. . To safeguard the health of the society, restrictions have been imposed by closing down all the places of worship for public. Thus, there is no violation of religious rights of a community. The endeavor of the government is to break the cycle by maintaining social distancing. Thus, the Court said that the discretion not to permit opening of all the places of worship has been exercised judiciously.
In the past, the Court favored the approach taken in the case of Adi Saiva Sivachariyargal v. Tamil Nadu,, treating public health as a compelling reason to limit other fundamental rights. The best example would be in In Re: Noise Pollution where the Court positively cited a decision of the Burrabazar Fire Works Dealers v. The Commissioner of Police & Ors., which upheld restrictions on the sale of firecrackers due to its impact on public health. In that case, the High Court had rejected the petitioner’s argument that the restrictions violated their right to conduct business under Article 19(1)(g). In Israel, ultra-Orthodox leaders claimed that closing religious seminaries was more harmful than the virus itself and as a result the central Israeli city of Bnei Brek became the country’s worst affected region, with experts estimating that nearly 40% people are infected in the city
In Nishikant Dubey v. Union Of India, the Jharkhand High Court observed that since we are fighting with the invisible enemy, so far as the symptomatic carrier of the virus is concerned, the same can be traced through medical checkup but there may be a serious threat from the persons who may be carriers of the virus who are asymptomatic. Further the Court said that the nature of the puja is such that controlling the virus and social distancing is very difficult.It has also been observed that it is not possible to screen the medical conditions of all those who converge in the city. Thus, taking into consideration, the compelling need of the present emergency, the government has the rights to curtail the freedom of religion in order to protect the right to health and life of the other citizens which should be considered as the paramount importance as of now.
Reasons for reopening of the religious institutions
The COVID-19 pandemic have resulted in a mental health crisis due the various stressors such as job loss, fear of contagion, social isolation, severe shortages of resources for testing and treatment, uncertain prognoses, etc. As per the mental health experts, the coronavirus pandemic is leading to panic attacks, anxiety and depression, thereby putting more people at risk for suicide. The COVID-19 pandemic has the tendency of increasing suicide rates during and after the pandemic. It has been around 6 months since the initiation of the first lockdown, and almost all institutions remained closed until the month of May. The movement restrictions have given rise to anxiety among people. Thus, along with all these institutions, the opening of religious institutions on the same lines won’t be causing any harm and would rather be beneficial for the health of the society.
Older adults are going through greater depression and loneliness during the COVID-19 pandemic according to the study by Indiana University researchers. It may be said that currently we are facing a situation resembling that of the US and Europe in 2008 when the London School of Hygiene and Tropical Medicine reported a surge of 10,000 suicides owing to the financial crisis. As per data, at least 80 people killed themselves due to loneliness and fear of being tested positive for the virus. According to the findings of a government study, COVID-19 pandemic had pushed many into "feeling depressed".
The World Health Organization (WHO) recently called upon countries in South East Asia to pay greater attention to mental health and suicide prevention. According to psychologists, gross poverty is never the cause of suicides in India. Thus, it is very much necessary to take care not just about the physical, but also the mental health of the people. The U.S. government had also opened the religious institutions saying that religion is an essential to the way of life. 
As per the report Mental Health in the times of COVID-19 Pandemic, the concerns regarding the present pandemic and the vulnerability due the virus, and its unique characteristics, is greatly affecting the people’s mental health. Moreover, the government’s nod is for opening of the religious institutions and not of a particular fair and the government has previously also successfully held the Rath Yatra and the Ayodhya Pujan in consonance with the SOPs and in a limited manner. In the former case, the court discussed the relationship between public health and religious freedom. Thus, the opening of the religious institution is not violative of any fundamental right and is rather in consonance with its promoting freedom of religion and right to liberty and health. In permitting businesses and commercial activities and prohibiting religious practices, the states have kept the freedom of religion at a lower pedestal. The pandemic accompanied by unemployment, financial stress, etc. has affected the mental health of many followers and worshippers which can be majorly resolved by allowing religious places to reopen and helping them attain spiritual peace and happiness.
The arguments of both the sides in relation to the opening of the religious institutions are reasonable and backed by valid concerns and ground. A rational balance needs to be struck between the protection of health versus the mental health vi-a-vis the religious freedoms of the individuals. In some recent judgments, this attempt of striking a balance has been discussed and upheld. There can be no common guideline or rule for all states or even cities and it’s the duty of the State Government to come up with the guidelines taking into consideration the facts and circumstances of a particular case. For spiritual happiness of the individuals, the limited rights of the devotees confined to the place of worship should be upheld. On the other hand, obligation to safeguard public health can also not be done away with.
In the case of Jayakumar T.V. v. State of Kerala the court said that a contention that there is an absolute bar on religious assembly is not accepted. The state government’s order limiting 15 persons per 100 sq. ft. was taken as a valid parameter and upheld. It was recognized that Mass in a Church is conducted at a particular time; prayer in a Mosque is performed at a particular time and so also worship in a Temple. Similarly, while the apex court initially restrained the concerned from holding Rath Yatra, later when the state government came up with detailed guidelines to control and regulate the movement, the court allowed it. When all activity involving economic interests and money are allowed, the total bar on opening of religious institution can’t be made in name of COVID-19.
The State cannot shrink from its responsibility to enforce the social distancing norms, particularly when there is opening up of such places throughout the world. An effort should be made by the State Government to find out possibility of darshan to limited number of persons which would be appreciated. A total restriction on darshan by public is prima facie unreasonable. Therefore a mid-way needs to be found by the State Government taking regard of both the demands of the present circumstances due to the pandemic as well as the physical as well as mental well-being of the people. It is for the government to fulfil their true obligations in a welfare state.
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