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God v/s legal restrictions and government liabilities

God versus legal restrictions and government liabilities: A situational analysis of the effects of pandemic laws in the light of Durga Puja, 2020

As the Durga puja, 2020 approaches, the apprehension of spreading pandemic in increasing. In 2020 March, when the government of India sensed the danger of Corona pandemic, almost all organizations were told to stop functioning from their respective work places. Shops and other business establishments were also ordered to stop functioning as a mode to restrict large gatherings of people which would spread the virus. While the offices (both public and private), schools, universities, banks etc., were restricted mostly by government orders, it was majorly S.144 Criminal procedure code (popularly known as curfew law) [1]  that was used for crowd controlling and restrict large gatherings at public places. [2]  

Soon, The Epidemic Diseases (Amendment) Ordinance, 2020 was promulgated and the government of India brought amended version of Epidemic Diseases Act, 1897 to control pandemic situation and provide complete health care guidelines for all including health workers.  In order to restrict public spreading of the deadly disease, the government also restricted private gatherings at homes, temples etc., to minimum number of people with special emphasis on social distancing. No sooner this restriction on public gathering was extended for over a month and then to indefinite periods as long as the pandemic was not under control. It was only in late September that the government slowly allowed shops and business establishments to function almost in the pre pandemic fashion, transferring to them the power to develop indigenous mechanisms for crowd controlling as per the standard government orders to restrict large gatherings. [3]

But much earlier, it was s understood that religious establishments could not control the crowd gatherings as it was being done successfully by educational institutions. With the lock down policies becoming stricter, people were photographed, video graphed defying all norms and gathering on religious occasions at small temples and worshipping places. Tablighi Jamaat however remained one of the most debated religious gathering during pandemic period when official reports suggested that India had 4,400 Covid 19 positive cases. [4]  Several attendees including attendees from foreign jurisdiction were arrested for voluntarily and consensually violating the laws meant restriction of movement in reference to pandemic.[5] This was seen as a clear violation of rules that the government was pressing for restricting spreading of pandemic. The organizers were also booked under several laws.. This was further given religious-political color and the courts came to the rescue of stranded attendees who traveled from other jurisdictions. [6] After this, several reports surfaced on public gatherings defying the government rules at private ceremonies including weddings, religious gatherings. Clearly, the government could do nothing except being a mute spectator for steep rising of cases of Covid. But however, the constant awareness by Ministry of Ayush about sanitization and precautionary remedies that should be taken to increase immunity did create a healthy habit among common individuals who started coming out of grave fear of death due to Covid. In short, by the first week of October, 2020, people were ready to lead ‘new normal’ life challenging the life threatening effects of Covid pandemic.

This entire scenario is now reflecting dangerously on Durga Puja preparations in West Bengal. Durga Puja is the annual festival of eastern India. While the rest of India celebrates Navaratri which may or may not attract large public gatherings at public places, Durga puja historically has attracted large public gatherings since centuries. The religious festival traditionally lasts for 5 days starting from Shashthi ending in Vijaya dashami when the idols of Durga, Lakshmi, Saraswati, Ganesha and Kartik would be immersed in the rivers of Bengal. West Bengal has a tradition of Barowari Durga Puja which essentially means puja being conducted by private organizations including cultural clubs for public at large.. Over the years the system of Barowari puja, which was basically started by revolutionary leaders of Bengal pre independence to encourage communal harmony and social unity irrespective of caste, community and religion, started attracting the attention of corporate sponsors who would be using the venue of the Puja for widespread marketing of their products. Since long the state government has introduced permit system for the puja committees in order to control illegal construction of pandals on the busy roads, near the hospitals and also for controlling loudspeakers that would be disturbing the peace especially in restricted areas. The Durga Puja especially in Kolkata and in some noted suburbs became an event for competition between clubs and organizers : this would necessarily include several other small and large stakeholders including local artisans, the Dhakis, who would be playing the Dhak, handloom and other textile industries, small scale entrepreneurs including women self-help groups etc. All of them would be financially benefitted by Durga Puja because the public (irrespective of caste, creed, religion) would be visiting the Durga puja venues and there would be wide scale commercial activities at the venue, on the roads etc. As such, the state government over the years have started bringing out special permits for sellers including food sellers to continue their business on public roads which would not be allowed on other times. Even though, while Bengal and Bengalis started apprehending for the restrictions on Durga Puja for pandemic, the West Bengal government came up with guidelines for conducting Durga Puja that would start from the middle of October, 2020. [7]  Following Bengal, several other states also issues similar guidelines to allow the commencement of Puja with minimum restriction.

The recent records would show that with  74,94,552  cases of Covid-19, India is one of the top ranker Covid countries. [8] Civil society members who have already been affected by the pandemic had raised their voices against government leniency towards allowing Durga Puja to be performed (even though in a much smaller scale) at venues which may attract large public gatherings where senior citizens and children may also be involved. Both the central and the state governments have shifted the onus on private individuals long back to remain protected during pandemic and this is evident when people have been arrested, detained and fined for violating the government rules related to amended Epidemic diseases Act. But nothing could basically create deterrence in the minds of people especially when the news reports suggested that Covid 19 can be curable. Shockingly however, most people have started ignoring the horrific experiences that the world went through since February, 2020. The relaxed rules of the government especially related religious festivals like Durga Puja would further push more contamination especially among the children and senior citizens. It is ironic to watch a tilting governance now especially when it comes to the decisions regarding not opening of schools and educational institutions versus allowing people to visit the Puja venues. The public sentiments related to festivals have got more priority now compared to right to health of people and right to education of children living in remote areas and socio-economically backward   communities who could not access proper health care mechanisms or online education for obvious reasons. The Calcutta high court however pulled up the question of pumping a huge amount to the puja organizers by the West Bengal government in the light of claims of prioritizing a special religious festival leaving the others. The government however clarified that the said amount is meant for awareness building by the Puja committees who generally use the revenue generated by the Puja, to help the under privileged [9].

But would the government take responsibilities for not being able to stop further spreading of pandemic post Durga Puja? The answer may be “NO” : the government may come up with a pre planned defense stating that it had rolled out the guidelines, made stakeholders aware of the risks and had used deterrence policies (but with no great success). The courts may also withdraw from their responsibility as the recent High court ruling suggested that limited visitors would be allowed in the pandals [10]. Hence it all depends upon the public morals and understanding which must have been ‘empowered’ and improved now to save themselves. Clearly, god must save the people !

[1] S.144 Cr.P.C speaks about power to issue order in urgent cases of nuisance of apprehended danger. It empowers District Magistrate, Sub divisional magistrate or any executive magistrate to pass an order in writing to restrict movement of people with immediate effect in relation to certain place/s, certain people especially when the said magistrate apprehends on sufficient grounds that there is an urgent need for immediate prevention of certain acts which among other things may endanger human lives, health or safety, or a disturbance of the public tranquility, or a riot, of an affray or speedy remedy of the damages as aforementioned.
[2] For example, see the use of S.144 Cr.P.C in Mumbai @ Ray Anulekha (March 22, 2020) Coronavirus: Section 144 in Mumbai as total cases rise over 70 in Maharashtra. Published @ https://www.livemint.com/news/india/coronavirus-have-no-option-but-to-apply-section-144-in-maharashtra-says-thackeray-11584870602906.html Accessed on 12.10.2020

[3] For more understanding, see Ghosh Dipankar (October 1, 2020), Unlock 5.0 guidelines: Cinema halls can open, states to decide on schools from October 15. Published @ https://indianexpress.com/article/india/unlock-5-coronavirus-guidelines-6619158/ Accessed on 12.10.2020
[4] See for more in Akash Bisht, Sadiq Naqvi ( April 7,  2020). How Tablighi Jamaat event became India’s worst coronavirus vector. Published @ https://www.aljazeera.com/news/2020/4/7/how-tablighi-jamaat-event-became-indias-worst-coronavirus-vector. Accessed on 12.10.2020
[5] See ibid
[6] See Sparsh Upadhaya (Oct 12.2020). [Tablighi Jamaat] ‘They Didn’t Act Negligently To Spread COVID; Didn’t Disobey Orders Of Authorities’, Mumbai Court Discharges 12 Foreign Nationals . Published @ https://www.livelaw.in/news-updates/tablighi-jamaat-they-didnt-act-negligently-to-spread-covid-didnt-disobey-orders-of-authorities-mumbai-court-discharges-12-foreign-nationals-164301 Accessed on 12.10.2020

[7] See the specific guidelines @ Banaerjea Aparna (Sep28.2020) Open pandals no cultural programmes-West-Bengal govt issues guidelines ahead of durga-puja. Published @- https://www.livemint.com/news/india/open-pandals-no-cultural-programmes-west-bengal-govt-issues-guidelines-ahead-of-durga-puja-11601295219266.html Accessed on 10.10.2020
[8] See in BS Web Team (October 18, 2020). Coronavirus LIVE: 61,871 new Covid-19 cases, 1,033 deaths in India in a day Published in https://www.business-standard.com/article/current-affairs/coronavirus-live-update-india-cases-74-lakh-death-toll-current-statewise-corona-vaccine-unlock-update-120101700044_1.html. Accessed on 18.10.2020
[9] See for more in Shiv Sahay Singh (October 16,2020). Calcutta HC seeks response from West Bengal government on Durga Puja dole Published in https://www.thehindu.com/news/national/other-states/calcutta-hc-seeks-response-from-west-bengal-government-on-durga-puja-dole/article32865921.ece. Accessed on 16.10.2020

[10] See for more in Banerjee & Bhasin Oct 21, 2020. Court’s Bengal Pandals ‘No-Entry’ Order Partially Eased. What’s Allowed. Accessed from https://www.ndtv.com/india-news/durga-puja-2020-kolkata-pandals-no-entry-zone-order-partially-eased-by-calcutta-high-court-up-to-45-people-can-enter-at-a-time-2313414 Accessed on 22.10.2020

Author:
Prof. (Dr.) Debarati Halder, Professor – Legal Studies, Unitedworld School of Law (UWSL)

Disclaimer: The opinions / views expressed in this article are solely of the author in his / her individual capacity. They do not purport to reflect the opinions and/or views of the College and/or University or its members.

Prof. (Dr.) Debarati Halder, LLB., LL.M, Ph.D. (Law) (NLSIU) may be reached @ [email protected]

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