The Supreme Court bench of Justices DY Chandrachud, Indu Malhotra and KM Joseph, dealing with the annual Amarnath Yatra issue, today (July 13) dismissed an appeal from the Shri Amarnath Barfani Langars Organisation to ban the participation of the public, stating that the issue of whether the Yatra would be held this year (in view of the COVID 19 pandemic) was up to the executive and, respecting the principle of the separation of powers, the top court does not want to pass any order on that.
Justice Chandrachud said: “We cannot enter the arena of the executive and district administration.”
The bench observed: “We are of the view that the decisions to whether the pilgrimage should be permitted and, if so, the conditions subject to which the safeguard should be observed are matters which fall within the executive domain of the state.”
The court also said: “Administrative authorities are required to bear in mind the relevant statutory provisions including the guidelines. An assessment of the situation on the ground must necessarily be based on local conditions and numerous factors which lie within the domain of the administrative functions of the state.”
The precedent relied upon by counsel advocate Devadatt Kamat of the petitioners was the June 18 order of the court in the Jagannath Yatra case. That order restrained the respondents from conducting the Rath Yatra. A later order noted the conditions under which the Rath Yatra in Puri could be held.
The court, however, felt that in the case of the Amarnath Yatra, the matter is best better left to the decision of the local authorities.
During the hearings, the court carefully examined the different paths that pilgrims take, uphill and en route to the shrine.
The petitioner’s counsel had explained to the court that there are two launch pads for the Yatra. The first is at Pahalgam and second at Baltan. He had said that right now the government is proposing opening the Baltan route. The petitioner pointed out that this route is a 14 km uphill trek, which may not be possible to accomplish wearing masks and ensuring social distancing.
He also pointed out that the pilgrims eat in community bhandars and stay in community tents. This, he had said, was against all norms as prescribed during the pandemic.
The bench then told the petitioner that ultimately the question is of whether the Yatra should at all be held. “You have raised a public health issue. These are matters that the executive authority, which has control over these issues should consider,” the bench said. “The judiciary should not be looking into these difficulties. You can apprise the authorities of the issues. We cannot take over the functions of the district administration or the state law and order machinery.”
Justice Joseph asked: “Is a Yatra within definition of a religious function?”
Justice DY Chandrachud also asked: “Is a Yatra a function? It’s a process by which pilgrims travel to the place of worship. These are the guidelines issued by the Central government. The Yatra is being held in a Union territory where the MHA has a large role to play. They are conscious of the issue. Why should we interfere?”
That was when advocate Kamat claimed that it was a public health issue. At that he had pointed out the Jagannath Yatra precedent. He said the general public cannot be permitted.
At that, Justice Chandrachud said: “All the guidelines under DMA are passed by the union home ministry. J&K is a UT now. Union home ministry has control there. Why should we exercise our jurisdiction then? This is not the function of the court. We cannot take over administration. These are matters for district administration to take.”
The bench observed: “It’s for the authorities to consider whether permission should be granted for the Yatra. Why should we assume that the administration will not take the right decision and start taking over the administration of various parts of the country?”
Advocate Kamat said: “For whatever reasons, certain processions are allowed and certain others are not allowed.”
The bench said: “That’s not the subject matter of the plea here. This is not the function of the court. We are not equipped to decide whether the Yatra should be held, what steps can be taken to ensure that outbreak does not take place.”
Advocate Kamat said: “We have made several representations, raised grounds for why the Yatra should not be held. But there was no response from government. We have come to court as a last resort. Courts the world over have said that religion and freedom of expression has to yield to the larger public health. They are allowing the Yatra, despite their own guidelines. Ultimately if the virus spreads it’s the public at large who will suffer.
“Your lordship should ask the state what precautions they are going to take.”
In the petition, petitioner seeking a direction to the Centre, J&K administration and Amarnath Shrine Board to cancel, restrict access of general public,devotees for the Amarnath Yatra this year in view of the Corona outbreak and in the alternative provide live darshan of Lord through internet & TV “so that crores across country can have access”.
Read the order here;13618-2020-34-15-22763-Order-13-Jul-2020
– India Legal Bureau