Kanwar Yatra in Uttar Pradesh and Bakrid in Kerala: Is it not a case of double standards?
Updated: Aug 12, 2021
Hon’ble Mr. Justice Rohinton Fali Nariman
Hon’ble Mr. Justice B.R.Gavai
Supreme Court of India
1. I was delighted and relieved that on 14th July 2021, on the basis of newspaper reports, you took suo moto cognizance of the potential risk to human lives from the likely spread of COVID-19 that could have been caused by allowing KANWAR yatra in Uttar Pradesh starting ten days later on 25th July 2021. The Indian Medical Association thanked you on 15th July for this action. We have witnessed a terrible tragedy unfold in the second wave of Covid, and reckless behavior of citizens, governments, and political decision makers. Your action spurred the Uttar Pradesh government, and Kanwar Sanghs responded with a great sense of civic responsibility by calling off the yatra second year in a row. I and, I am sure, millions of citizens are grateful to you for such prompt action.
2. I was disappointed that you did not react with the same alacrity to the lockdown relaxations announced by the Chief Minister of Kerala on 17th July 2021. The Indian Medical Association issued a Press Release on 18th July 2021 at 6.48 am expressing strong disapproval of the decision of the Chief Minister of Kerala and threatened to appeal to the Court if the order was not cancelled. I quote from their Press Release “IMA is pained to see amidst the rise of cases and seropositivity, the Kerala government has issued an order to ease out lockdown followed in the state on the pretext of religious gatherings of Bakrid. It is unwarranted and inappropriate at this time of medical emergency. When many Northern states like J&K (sic), Uttar Pradesh, and Uttranchal (sic) have stopped, with a constructive sense of public safety the traditional and popular pilgrimage yatras, it is an unfortunate learned state of Kerala had taken this decisions which will pave wave for mass gatherings.” Kerala did not heed to the request of IMA and went ahead with its appallingly irresponsible decision of allowing opening of markets even for non-essentials like beauty parlors and cinema shoots from 18th to 20th July.
3. What is inexplicable is the different approach you took in case of Kerala. You did not take suo moto cognizance and waited for “one Mr. Nambiar” to approach the Court on 19th July. Even then, you did not ask Kerala government to “cease and desist” on 19th itself but asked them to submit an affidavit on 20th July by when your order had become irrelevant. To an ordinary reader, your orders of 14th, 16th, 19th, and 20th, and your differential treatment between two similar situations, would appear to be a case of either communal appeasement or double standards. Here are the four reasons why:
(i) You, thankfully, took immediate action on 14th July as soon as you saw the newspaper report on Uttar Pradesh Government permitting Kanwar Yatra, and took suo moto cognizance instead of waiting for someone to approach the Court. In case of Kerala in spite of IMA issuing a Press Release that should have raised alarm, you did not include the issue of relaxation in lockdown for Bakrid by Kerala in your suo moto writ.
(ii) When Kanwar Yatra was stopped for Uttar Pradesh, its Test Positivity Rate (TPR) was 0.042% as submitted by the UP Government in its affidavit. When Kerala announced Bakrid related lockdown relaxations its TPR was 10.7%. I provide below the comparative figures for new Covid cases in Kerala and Uttar Pradesh for the relevant period.
Clearly COVID-19 was raging in Kerala (population 34 million) with daily new cases in the range of tens of thousands, while in UP (population 204 million) the number of cases were less than 100. Over the month of July since 14th when you took up the case, the average of the new daily cases in Kerala is 16,616 and in Uttar Pradesh it is 53. Consistently, cases in Kerala have been more than 200 times that of UP which would be a staggering 1200 times if one normalizes it for six times higher population in UP. On 3rd August Kerala had 23,676 cases while UP had only 62. Not only Covid-19 is raging in Kerala, it is the biggest hot spot in India jeopardizing lives and livelihood of the entire country.
(i) You were reported to be very stern with the UP Government. “the Uttar Pradesh government cannot go ahead with the kanwar yatra - 100%”. And "We can give you one more opportunity to consider holding yatra physically at all. This or else we pass an order”. You even persuaded them to cancel symbolic yatra though UP Government had stipulated COVID vaccination and negative RTPCR test within 72 hours prior for symbolic participation. As against this “Kerala Chief Minister Pinarayi Vijayan had announced the concessions at a press conference on July 17. In view of Bakrid (Eid-ul-Azha) being celebrated on July 21, textiles, footwear shops, jewellery, fancy stores, shops selling home appliances and electronic items, all types of repairing shops and shops selling essential items shall be allowed to open on July 18-20 from 7 AM to 8 PM in category A, B and C areas, he had said” Kerala vide its Notification of 17th July 2021 (quoted in your order of 20th July 2021, para 11) said that “as far as possible the persons visiting shops … may belong to those with at least one dose of Covid-19 vaccine..” The argument of Kerala government was facetious that traders had stocked in anticipation of Bakrid and will suffer losses and that traders had threated the government with agitation. The contrast between the two states could not be more stark.
(ii) Your order of 20th would be seen only as a vague remonstration or imposing a sham of accountability on Kerala Government. Your order asked the Kerala Government to follow the law laid down in your orders of 14th, 16th, and 19th, July (strange retrospectivity?). It also stated that “ as a result of the Notification dated 17.07.2021, any untoward spread in the Covid-19 disease takes place, any member of the public may bring this to the notice of this Court, after which this Court will take necessary action against those who are responsible”. For holding Kerala Government accountable, your Order did not:
a. Define the metrics of accountability i.e. define “untoward” what magnitude of increase would be considered “untoward”?
b. What is the baseline against which “untoward spread” would be measured?
c. Define the measure of untoward spread – number of daily new cases, weekly average, TPR, number of deaths?
d. Define who will monitor and report to the Court. The order left it to the “member of the public” instead of either asking Kerala Government to report or appoint an amicus curiae to monitor it on behalf of the Court, or take suo moto cognizance as you had done for Uttar Pradesh.
For establishing accountability, if the metrics, baseline, measure, monitoring, and reporting are not defined, in normal parlance it is called a sham of accountability which is like “holding the fish under water and pretending that you are trying to drown it as a punishment”.
4. From the above, a common citizen like me has no option but to conclude that the Court was applying different yardsticks between the two states which may be perceived, even if unintended, as communal appeasement. One can also surmise that it may be the newly emerging Chandrachud doctrine that the Supreme Court must “play the role of a counter majoritarian institution”. This doctrine sounds neither like a law, nor Constitution, nor justice, but a political ideology. I do not know the law, but I understand justice. You know injustice when you see it.
5. In a highly stressed fledgling democracy facing a million mutinies a day, there are not many institutions that have shaken off the inherent oppressiveness and elitism of colonial system of governance. Supreme Court has, often, been an exception and has earned the trust of the citizens. Growing perceptions of the citizens about the judiciary playing a partisan and communal role would destroy that trust and a moth-eaten democracy one day would descend into a chaos of conflict. I have seen it around the world, and worked in many such situations, and am deeply concerned that in India “counter majoritarianism” has been a driver of polity and many institutions, and has immensely damaged the civilizationally-secular ethos of our country. Communal appeasement entering the sinews of higher judiciary does not portend well for Indian democracy.
6. I have brought to your notice, what to me appears, “untoward spread” of COVID-19 in Kerala. It is hard to discern whether it meets the criteria set in your order of 20th July and, if it does, I hope you would stand behind your own order and implement it to the full force of the law as laid down in your orders of 14th, 16th, 19th and 20th July 2021 to restore the crumbling trust of citizens in India’s judicial system.
former Chief Operating Officer,
United Nations Sustainable Energy for All
8th August 2021
 https://english.mathrubhumi.com/health/health-news/ima-criticises-kerala-govt-over-bakrid-relaxations-in-covid-19-regulations-1.5839124  Data obtained from Kerala government dashboard, and John Hopkins University Covid-19 data. John Hopkins University Covid-19 data  https://www.hindustantimes.com/india-news/call-off-kanwar-yatra-or-we-will-sc-tells-up-101626459133520  https://www.ndtv.com/india-news/kanwar-yatra-states-must-not-allow-devotees-movement-must-ensure-availability-of-ganga-water-centre-tells-supreme-court-2487835 http://www.businessworld.in/article/After-Rap-On-Bakrid-Relaxations-Kerala-Tells-SC-45-Population-Vaccinated-With-One-Dose/20-07-2021-397276/  https://indianexpress.com/article/india/justice-chandrachud-on-anti-terror-law-dissent-minorities-7403116/