Karnataka High Court: A Division Bench of Chief Justice and Aravind Kumar J. gave a slew of directions regarding vaccine allocation, oxygen supply, food security and dignified burial of COVID dead bodies.
Issue 1: Delay in test result reporting
The Court taking stock of the situation in light of a recent incident where a staff of High Court died due to covid as the test result was not communicated to the deceased on time and hence he could not take treatment for COVID-19.
- State Government must initiate appropriate action in accordance with law against all concerned who are responsible for this lapse and place on record a report on the action taken on the next date.
- State Government shall issue a direction to all the Laboratories to ensure that such incidents are not repeated and test reports are made available within 24 hours.
Issue 2: Vaccine Allocation
About 26, 00,000 beneficiaries in the State who have taken the first dose of COVISHIELD or COVAXIN have not received the second dose though it is overdue as per the prevailing norms of the Central Government. The total stock of vaccines available in the State is only 9, 37,780 of doses. Hence, there is no possibility of majority of 26, 00,000 beneficiaries getting the second dose which is already overdue. The situation which prevails today clearly shows that if all the available 9, 37,780 doses are to be used for administering the second dose, a substantial number of beneficiaries who have taken the first dose will not get the second dose.
The Court observed that there cannot be any distinction between the words ‘due’ and ‘overdue’ when it comes to administration of the second dose. Once as per the existing timelines, the second dose is due, it is an obligation of the Governments to ensure that the second dose is provided. If the second dose is not provided, it will be a violation of the fundamental rights of the citizens under Article 21 of the Constitution of India.
The Court further observed that If those who have taken the first dose are not administered the second dose on the respective due dates, apart from violation of the fundamental rights of the said citizens under Article 21 of the Constitution of India, if they are required to take the first dose again, it will be a huge national waste of the first dose already administered to them.
A mandatory direction to both the Governments regarding ensuring sufficient procurement of quantity of vaccine doses however was not issued in light of submission made by the Additional Solicitor General. It was stated that a decision on allocation of vaccine is likely to be taken and it was assured that the Central Government will make every endeavour to bridge the gap to ensure that no one is denied the second dose which has become due.
The sum and substance of the guidelines by the Central Government appears to be that the first priority of the State Government should be to provide vaccine to those who have taken the first dose.
“By way of an illustration, we may record here that if a person has taken the first dose of COVISHIELD more than eight weeks back, he must get priority over the person who has completed seven weeks from the date of taking the first dose of COVISHIELD. Thus, it is mandatory for the State Government to ensure that a rational and fair formula is adopted for giving second dose of vaccination.”
- State Government must abide by the said guidelines considering the desperate and critical situation created due to failure to administer second dose to about 20,00,000 citizens.
- State Government shall place on record all the facts and figures (district-wise) regarding the second dose administered throughout the State
Issue 3: Food Security
The Government of India decided to allocate free of cost food grains at 5 Kgs, per person, per month to nearly 80 crore beneficiaries covered under the National Food Security Act, 2013 (NFSA) over and above NFSA Food grains for next two months i.e. May and June 2021 on the same pattern as the earlier “Pradhan Mantri Garib Kalyan Anna Yojana (PM-GKAY)”. Under this Special scheme (PM-GKAY) around 80 crore NFSA beneficiaries covered under both the categories of NFSA, namely Antyodaya Anna Yojana (AAY) and Priority Householders (PHH) will be provided with an additional quota of free of cost food grains (Rice/wheat) at a scale of 5 Kgs per person, per month, over and above their regular monthly entitlements under NFSA.
There is an issue regarding implementation of the instant scheme which is being implemented through Indira Canteens throughout the State.
- It is directed to both the Governments to take a call on the issue whether the benefits of Atma Nirbhara Scheme as applicable last year can be extended to those who are not holding a ration card of any State.
- State Government shall also identify the vulnerable sections of the society who have been affected by the partial lockdown.
- State Government shall take a decision immediately on the issue of restoring Dasoha helpline to know who are the persons who are deprived of the benefits of the scheme of the State Government of supplying cooked food as well as well as the scheme of the Central Government.
Highlights of the Report of the Monitoring Committee of the Karnataka State Legal Services Authority
There are two main issues which arise on the basis of the said report. These are as follows:
- Compensation in Chamarajanagar District Hospital Tragedy
The Court relied on judgments Rudul Sah v. State of Bihar 1983 (4) SCC 141 and Nilabati Behera v. State of Orissa, AIR 1993 SC 1960 and observed “that in a public law remedy in the form of a petition under Article 226 of the Constitution of India, Writ Court can grant compensation for violation of the fundamental rights guaranteed under Article 21 of the Constitution of India.”
- Responsibility for lapses
The Court observed that the Committee has found instances of tampering with the relevant record. The Court directed that “the record shall be retained in the custody of the Chief Secretary will continue to operate. Needless to add that either the Commissioner appointed under the Commission of Inquiry Act, 1952 or any Investigating Agency needs to look into the record, the Chief Secretary will make available the said record.”
Observations regarding Oxygen
“….it is for the State Government to immediately communicate the requirements of the State to the concerned Authority of the Central Government in view of the assurance recorded therein.”
Observations regarding Dignified Burial or Cremation
The Court observed
“….State Government permit burial of the body of a person who has died due to COVID-19 without obtaining a death certificate.””
The Court finally directed “the learned Advocate General or the learned Additional Advocate General convenes a meeting of the learned counsel appearing for the parties so that the issues regarding compliances can be discussed and a proper response is given on the next date”
[Mohammed Arif Jameel v. Union of India, 2021 SCC OnLine Kar 12301, decided on 13-05-2021]
Arunima Bose, Editorial Assistant has put this report together.