Delhi High Court: Prathiba M. Singh, J., while addressing the issue with respect to wearing masks while travelling alone in a car held that:
A vehicle which is moving across the city, even if occupied at a given point in time by one person, would be a public place owing to the immediate risk of exposure to other persons under varying circumstances. Thus, a vehicle even if occupied by only one person would constitute a ‘public place’ and wearing of a mask therein, would be compulsory.
Petitioners challenged the imposition of Rs 500 for non-wearing of face masks while travelling alone in a private car.
Analysis and Findings
The three broad issues to be addressed by the Bench are:
- What is the ambit of the power to issue guidelines under the provisions of Epidemic Diseases (Amendment) Act and DMA?
- Whether under the guidelines which have been issued under the April Order by the DMA and June Notification, wearing face masks is compulsory even when an individual is travelling in a privately owned car. If so, in what manner is the face mask to be worn?
- iii. Whether the Executive Magistrates who have issued the challans and imposed the fines of Rs 500 each were properly authorised in law?
Bench noted that EDA confers power on both the State and Central Government to prescribe regulation as may be necessary for both the purposes of the prevention of disease, as well as, the spread of disease. Central and State Government are empowered under the DMA to take all such measures as it deems necessary for the purpose of disaster management.
High Court in the present set of facts and circumstances was concerned with the Order issued by DDMA in April and the Regulations of 2020.
The above-said Order specifically recorded that the spread of Coronavirus could be reduced substantially by wearing of face masks. In view of the same wearing of face masks was made compulsory for any person moving in a public place.
Petitioners submitted that in the above-said order, a specific direction existed for compulsorily wearing a face mask while in a personal or official vehicle and the was conspicuously absent in the Regulation of 2020.
High Court expressed that:
The wearing of a mask is in the nature of a measure which is necessary for controlling the spread of the Coronavirus and the directions in respect of wearing of face masks can clearly be issued under the provisions of the EDA and the DMA.
“…The April Order and the Regulations of 2020 have to be interpreted in the context and background of the pandemic, and not in isolation thereof.”
Bench also highlighted that the wearing of masks is necessary irrespective of whether a person is vaccinated or not.
Coming to the April Order, Court stressed upon the fact that the order made it unequivocally clear that any person moving in a personal or official vehicle “must” wear masks “compulsorily”.
The said order doesn’t distinguish between whether the person is travelling alone or with any other occupants in the car.
Further elaborating the importance of wearing the masks in the car, Bench elucidated that, when the car is occupied by more than one person, there can be no doubt that masks ought to be worn by each of the occupants. Since the occupants of a car could be persons who may have been exposed to the virus at any point in time and may be temporarily occupying the car, the fact that they would be sitting in an enclosed space, especially with windows rolled up makes them extremely vulnerable if they do not wear the masks. Thus, multiple occupants in a car, in any personal or official vehicle would have to compulsorily wear the masks.
Whether if a person is travelling alone in a car, should he/she wear a mask?
Bench while answering the stated issue, expressed that the Regulations of 2020 specifically state that they are being issued “to enforce the directives” and “to impose penalties by way of fines for a deterrent effect.
What Constitutes as a public place?
‘Public place’ may be defined differently in various enactments, depending on the context.
Supreme Court in its decision in Gaurav Jain v. Union of India, (1997) 8 SCC 114 examined the scope of ‘public place’. It was held that for a place to fall within the purview of this term, it need not be public property and could even be private property which is accessible to the public.
Kerala High Court’s decision in Malathi v. State of Kerala, 2020 SCC OnLine Ker 308 observed that the term ‘public place’ has to be understood in the larger context.
Now coming to the earlier question, Bench stated that A person travelling in a vehicle or car even if he is alone, could be exposed to the virus in various ways.
While explaining more on the above, High Court expressed that if a person is travelling in the car alone, the said status is not a permanent one. It is merely a temporary phase.
There are several possibilities in which while sitting alone in the car one could be exposed to the outside world. Thus, it cannot be said that merely because the person is travelling alone in a car, the car would not be a public place.
Exercise of powers
High Court noted that the definition of authorized persons being inclusive and expansive in nature, District Magistrates are vested with powers to further authorize any officers to issue challans.
Court directed the authorities concerned to take all requisite measures for the enforcement of wearing of face masks as compulsory in the context of the pandemic.
While concluding with the decision Bench held that all the four Petitioners in the present cases, being advocates/lawyers ought to recognise and assist in implementation of measures to contain the pandemic, rather than questioning the same. Advocates as a class, owing to their legal training have a higher duty to show compliance especially in extenuating circumstances such as the pandemic. Wearing of masks cannot be made an ego issue. Compliance by advocates and lawyers would encourage the general public to show greater inclination to comply.
In view of the above discussion, the petitions were dismissed. [Saurabh Sharma v. Sub-Divisional Magistrate, 2021 SCC OnLine Del 1530, decided on 07-04-2021]
Advocates before the Court:
For the Petitioners:
K.C. Mittal, Joby P. Varghese, Saurabh Sharma and R.P.S Bhatti.
For the Respondents:
Devesh Singh, ASC, GNCTD with Sukriti Ghai and Manas Bhatnagar, Advocates Farman Ali Magray, Sr. Panel Counsel.
Shobhana Takiar, ASC, GNCTD; Bhagavan Swarup Shukla, CGSC with Sarvan Kumar, Advocate.
T.P. Singh, Sr. Central Govt. Counsel; Sanjoy Ghose, ASC Rhishabh Jetly, Advocate for GNCTD.
Devesh Singh, ASC, GNCTD with Sukriti Ghai and Manas Bhatnagar, Advocates