Op EdsOP. ED.

I. Introduction

The coronavirus crisis encouraged traditional and even first time investors to look for alternative investment opportunities, and cryptocurrencies have been an unconventional and increasingly popular alternative ever since.[1] Cryptocurrencies are a form of digital currency based on blockchain technology, widely considered secure, decentralised and providing anonymity to its users, while using cryptography[2] to secure the transaction records. Due to the highly secure nature of transactions, purchases cannot be traced, and individuals can use it to purchase even illegal merchandise, including drugs or firearms.[3] Although cryptocurrency is “secure” two elements make cryptocurrencies riskier than bank accounts: market volatility and the lack of federal insurance and regulation.[4]

The cryptocurrency market crossed $1 trillion value earlier this year,[5] while unofficial industry estimates suggest that Indian owned investments in cryptocurrencies to be approximately US $1.4 billion.[6] Further, the PwC 2020 Time for Trust Report[7] found that blockchain technology would add $1.76 trillion (~1.4%) to the global Gross Domestic Product (GDP) by the year 2030. A global poll revealed that 73% of millionaires would invest in cryptocurrencies, such as Bitcoin and Ethereum, before the end of 2022.[8]

In 2018,  Reserve Bank of India (RBI) promulgated a circular[9] which prohibited banks from extending financial services that involved cryptocurrency, though  RBI had raised concerns about the potential financial, legal and security risks associated with it since 2013.[10] The Ministry of Finance constituted an Inter-Ministerial Committee which published the report of the Committee to propose specific actions to be taken in relation to Virtual Currencies, 2019[11] raising several pertinent concerns including the need to secure consumers from fraud and risks, the protection of the financial system, and the need to prevent criminal activities. Thus, the Committee submitted the Draft Banning of Cryptocurrency and Regulation of Official Digital Currency Bill, 2019[12], which suggested a blanket ban on cryptocurrencies. Interestingly, the Draft Bill provided under Section 8(1) that whoever directly or indirectly mines, generates, holds, sells, deals in, transfers, disposes of or issues cryptocurrency, shall be punished with up to 10 years of imprisonment. The severity of the proposed imprisonment is in line with Para 2 of  Part A of the Schedule under the PMLA, giving us a clear indication as to how seriously the Government views these transactions.

However, a Supreme Court Bench comprising of  R.F. Nariman, Aniruddha Bose and V. Ramasubramanian, JJ. quashed  RBI circular in Internet and Mobile Assn. of India v. RBI,[13] (hereinafter “IMAI”), on the ground of proportionality, and upheld the contention that the denial of access to cryptocurrency users would be tantamount to a denial of the right to carry on any trade or profession guaranteed under Article 19(1)(g)[14] of the Constitution of India (hereinafter “the Constitution”). Thereafter, the Cryptocurrency and Regulation of Official Digital Currency Bill, 2021, was set to be introduced in the Lok Sabha, to prohibit all private cryptocurrencies operational in India.[15] There is a strong likelihood that this step is being undertaken, because  RBI is instructed to launch its own digital currency.[16] Yet, as on date, there is no definitive regulation governing cryptocurrencies, adding to the uncertainty and confusion about its legality in India.

The Government of India initially wanted to encourage blockchain technology whilst opposing the legitimisation of cryptocurrency because once the unit of transaction changes from rupees to any kind of cryptocurrencies, tax recovery or general regulatory control would become extremely difficult and may reach beyond the regulatory capacity of the Government.[17] Thus, the Government has attempted to welcome blockchain technology,[18] but has vehemently opposed the use of private cryptocurrencies.[19] Recently, it was reported that the Government plans to consult experts and seek “legal opinion at the highest level” before it comes to a final decision on whether to allow the trading and holding of cryptocurrencies within the domestic market.[20]

Therefore, it is warranted to declutter the aspect of cryptocurrencies regarding the foregoing anticipation of money laundering attached to it, as to whether it can or rather should, be regulated through the PMLA, in view of its decentralised and peer-to-peer (P2P) network mechanism apropos its tenuous legality.

II. Legality of Cryptocurrency

The key issue surrounding cryptocurrency is the inability to define its legal status. In light of cryptocurrencies being prone to anti-money laundering/counter terrorist financing (AML/CTF), the “silk road,”[21] or sophisticated cyber hackings,[22] almost no country has recognised cryptocurrency as a valid legal tender.[23] Though recently, El Salvador became the first country to adopt Bitcoin as a parallel legal currency,[24] while the move was anticipated to be allied with legal and economic issues by the International Monetary Fund (IMF).[25]

The Supreme Court in IMAI[26] judgment recognised that  RBI could notify cryptocurrencies to fall under the definition of “currency” under the Foreign Exchange Management Act, 1999[27] (hereinafter “FEMA”). Therefore, cryptocurrency users would be deemed to carry on an activity that falls within the control of  RBI. The Court further held that cryptocurrency does not hold any inherent monetary value and it cannot be classified as a prepaid instrument under the Payment and Settlement Systems Act, 2007[28] (PSSA). However, the Court recognised the ability of  RBI to regulate cryptocurrencies under the PSSA. Notwithstanding the IMAI[29] judgment,  RBI has “major concerns” on the impact of cryptocurrency trade on the country’s financial stability.[30]

On 24-3-2021, the Ministry of Corporate Affairs made it mandatory for companies dealing with cryptocurrencies to disclose profit or loss incurred on transactions, the amount of cryptocurrency they hold and deposits or advances from any person.[31] Further, multiple banks have warned their customers of restrictions if they deal in cryptocurrencies, further adding uncertainty on the tenuous legality of cryptocurrencies.[32] The Court in IMAI[33] judgment opined that,

  1. It is as much true that VCs (virtual currencies) are not recognised as legal tender, as it is true that they are capable of performing some or most of the functions of real currency.

Certain cryptocurrencies known as “stablecoins” are today’s economic equivalent of money market funds, which could create significant damage in the broader crypto market.[34] One of the serious criticisms of cryptocurrencies is that it has no inherent worth, and it only has the worth that the world gives it.[35] Moreover, owing to the decentralised structure, a random “broken heart” emoji tweeted by Elon Musk drastically fluctuated the market valuation of Bitcoin.[36] A monetary system that fluctuates on individual opinions, might be regarded as inherently flawed. Further, cybercriminals are going after cryptocurrency, with an increase in the number of new modifications of miners, according to a report by the cybersecurity firm Kaspersky.[37]

Thus, how can there be a currency that is not backed up by a sovereign State? The IMAI[38] judgment noted that, “George Friedman, the founder and Chairman of Geopolitical Futures LLC, an online publication, aptly summarised this dilemma as follows:

  1. 104. Bitcoin is neither fish nor fowl … But both pricing it as a commodity when no commodity exists and trying to make it behave as a currency, seem problematic. The problem is not that it is not issued by the Government nor that it is unregulated. The problem is that it is hard to see what it is.

III. Cryptocurrency and money laundering

Some cryptocurrencies such as Monero, Zcash, DASH, Verge and Horizen provide their users with maximum privacy, making it almost impossible to trace the parties involved in the transactions.[39] In other words, most cryptocurrencies allow criminals to hide the source of their wealth. Though Bitcoin records all transactions which are contained in a freely distributed database,[40] criminals reportedly[41] laundered US $2.8 billion through Bitcoin exchanges in 2019, up from US $1 billion in 2018, making it even more appealing to criminals.[42] Thus, there is minimal or no law enforcement oversight protection, since there is no authority for regulating cryptocurrency, as opposed to the active role of the Government in the distribution of fiat currencies.

Cryptocurrencies being primarily based on P2P mechanism attract launderers for having the total cost of cash out strategy at less than 15% of the proceeds of crime, compared to other money laundering methods costing up to 50%.[43] It is because the information relating to the transaction, or the source of funds mostly are anonymous, making it next to impossible to bring it within the ambit of the PMLA, besides the fact that not recording every transaction detail violates Section 12[44] of the PMLA, which imposes an obligation on banking companies, financial institutions, and intermediaries to maintain and upkeep records. This anonymity and accessibility arguably make cryptocurrencies the preferred safe haven for criminal activities including money laundering.[45]

Therefore, unless anonymity is omitted from all transactions relevant to cryptocurrency, tracing or freezing the digital wallet suspected to be containing “proceeds of crime,” would practically become impossible for an agency like the Directorate of Enforcement (hereinafter “ED”). The Draft Bill which sought to ban all cryptocurrencies, attempted to address the problem of anonymity by bringing the act of mining, generating, issuing, holding, using, selling, transfer and/or disposal of cryptocurrency within the meaning of a “scheduled offence,” under the PMLA. Further, it has been reported that India’s leading cryptocurrency exchanges, including WazirX, CoinDCX and CoinSwitch Kuber, have partnered with Internet and Mobile Association of India to set up an advisory board to implement a code of conduct for the crypto industry in India.[46] Recently, the ED reportedly issued a notice to WazirX for allegedly violating the FEMA for transactions worth ₹2,790.74 crore.[47] Even though India has not yet passed a law on cryptocurrency, certain types of transaction have a higher risk of attracting penalties.[48]

The Supreme Court in  IMAI[49] judgment observed that virtual currencies are not widely accepted modes of exchange and thus they could also not be regarded as a final discharge of debt. The Government once aimed to block cryptocurrencies and welcome blockchain technology in the same breath, however, the Government may be required to recognise cryptocurrency if it intends to generate revenue through it and prevent its misuse as an avenue of money laundering. Moreover, the Indian income tax law is unclear regarding the tax impact on the gains earned from cryptocurrencies.[50]

 IV.  Where the world stands on cryptocurrency

According to the United Nations, the estimated amount of money laundered globally in a year is 2% to 5% (or $800 billion to $2 trillion) of the global GDP.[51] While the world leans towards the sustainable development goals to counter climate change, a debate looms around the energy consumption in cryptocurrency mining. As per an analysis of the Cambridge Centre for Alternate Finance, Bitcoin consumes approximately 110 Terawatt hours per year – 0.55% of the global electricity production, or roughly equivalent to annual energy draw of Malaysia or Sweden.[52] Is the cryptocurrency energy consumption appropriate use of non-renewable resources or the world needs to reject this model of monetary system?

In Canada, digital currencies are not legal tender,[53] but are bound by the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000, which include processes such as record keeping, verification, suspicious transaction reporting, and registration. In Singapore, primarily the Payment Services Act, 2019, mandate that cryptocurrency businesses should obtain a licence complying with AML/CTF regulations. In the United Kingdom, those engaged in crypto related business have to register with the Financial Conduct Authority, and they have to comply with AML/CTF measures provided under the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations, 2017. Recently, it was reported that up to 50 companies dealing in cryptocurrencies such as Bitcoin may be forced to close after failing to meet the UK’s AML rules.[54]

On the other hand, in the United States,[55] though there is no federal regulation governing cryptocurrencies, the Financial Crimes Enforcement Network (FinCEN) regulates money services businesses (MSBs) under the Bank Secrecy Act of 1970. Thus, while MSBs are required to conduct a comprehensive risk assessment of exposure to money laundering, FinCEN regulates MSBs to develop, implement, and maintain a compliance program for AML/CTF. Recently, the owner of a Bitcoin exchange was convicted by a federal jury for his role in a transnational and multimillion-dollar scheme to defraud Americans and received a 121-month prison sentence.[56] Another man was sentenced to 121 months in federal prison for conspiring to distribute and possess methamphetamine, a dangerous drug, the payment of which was done through cryptocurrency.[57] These are just a few illustrations that point to the dangers of an unregulated anonymous currency.

 V. The way forward

 Cryptocurrency needs to be regulated, undoubtedly. However, the PMLA as it currently exists is wholly insufficient to deal with money laundering via cryptocurrency and there can be two procedures to tackle this insufficiency. Firstly, it may be regulated by amending Section 2(s)(sa)[58] of the PMLA to include cryptocurrency business persons within the meaning of “person carrying on designated business or profession,” bringing the exchange service provider within the meaning of “reporting entity” under Section 2(w)(wa) and imposing “client due diligence/KYC” requirements on cryptocurrency businesses under Rule 9 of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005. Secondly, an effective legislation can be enacted with an autonomous body as thewatchdog, to affect safe utilisation of the currency. India should reasonably anticipate that decentralised and unregulated cryptocurrencies, while undermining the control of e RBI, can destabilise the economy; alongside being misused for circumventing capital controls, money laundering or illegal purchases. The verdict of the Supreme Court in IMAI[59] shall necessarily be complied with, which makes a ban on cryptocurrencies to be violative of the fundamental right to trade guaranteed under the Constitution. However, it is more likely that this position will have to be revised and a legislative ban be imposed as the dangers of cryptocurrency become clearer.


Criminal Lawyer based out of New Delhi.

†† Intern, Law Chambers of Jai Anant Dehadrai [3rd Year, BA LLB (Hons), Jamia Millia Islamia, Delhi].

1 Hadar Y. Jabotinsky and Roee Sarel, “How the Covid-19 Pandemic Affected the Cryptocurrency Market” (CLS Bluesky Blog, 26-3-2021) <https://clsbluesky.law.columbia.edu/2021/03/26/how-the-covid-19-pandemic-affected-the-cryptocurrency-market/>.

[2] Kathleen Richards, “What is Cryptography” (TechTarget, April 2020) <https://searchsecurity.techtarget.com/definition/cryptography>.

[3] Dawn Allcot, “How Does Cryptocurrency Work – and is it Safe?” (Yahoo Finance, 2-5-2021) <https://finance.yahoo.com/news/does-cryptocurrency-safe-150059419.html>.

[4] Ibid.

[5] Samanth Subramanian, “Crypto is Now the World’s Fifth-Most Circulated Currency by Value” (Quartz, 12-1-2021) <https://qz.com/1954555/all-the-worlds-crypto-is-now-worth-more-than-1-trillion/>.

[6] James Mathew, “Crypto Investors Get a Shock as India Drafts Bill to Ban Digital Currency” (Arabian Business, 20 April 2021) <https://www.arabianbusiness.com/alternative-assets/462324-crypto-investors-get-shock-as-india-circulates-draft-bill-to-ban-the-digital-currency>.

[7] PwC, “Time for Trust: The Trillion-Dollar Reasons to Rethink Blockchain” (PwC, October 2020) <https://image.uk.info.pwc.com/lib/fe31117075640475701c74/m/2/434c46d2-a889-4fed-a030-c52964c71a64.pdf>.

[8] Kevin Helms, “Millionaires FOMO: 73% Will Own Bitcoin by 2022, Survey” (Bitcoin News, 19-11-2020) <https://news.bitcoin.com/millionaires-fomo-73-own-bitcoin/>.

[9] Reserve Bank of India, “Prohibition on dealing in Virtual Currencies” (RBI/2017-18/154, 6-4-2018) <https://rbidocs.rbi.org.in/rdocs/notification/PDFs/NOTI15465B741A10B0E45E896C62A9C83AB938F.PDF>.

[10] Vinod Joseph et al., “India: Cryptocurrencies In India – Past, Present & Future” (Mondaq, 13-5-2020) <https://www.mondaq.com/india/fin-tech/944312/cryptocurrencies-in-india–past-present-future>.

[11]Ministry of Finance, Report of the Committee to Propose Specific Actions to be Taken in Relation to Virtual Currencies, (Department of Economic Affairs, 28-2-2019) <https://dea.gov.in/sites/default/files/Approved%20and%20Signed%20Report%20and%20Bill%20of%20IMC%20on%20VCs%2028%20Feb%202019.pdf>.

[12] Banning of Cryptocurrency & Regulation of Official Digital Currency Bill, 2019 <https://prsindia.org/files/bills_acts/bills_parliament/Draft%20Banning%20of%20Cryptocurrency%20&%20Regulation%20of%20Official%20Digital%20Currency%20Bill,%202019.pdf>.

[13] (2020) 10 SCC 274.

[14] Article 19(1)(g), Constitution.

[15] BQ Desk, “India’s Cryptocurrency Ban: Top 5 Things to Know” (BloomberQuint, 18-2-2021) <https://www.bloombergquint.com/business/indias-cryptocurrencies-ban-top-5-things-to-know>.

[16] Manoj Sharma, “RBI Working on Digital Currency, Wants to Tap on Blockchain Technology: Das” (Business Today, 25-2-2021) <https://www.businesstoday.in/current/economy-politics/breaking-rbi-reservations-regarding-cryptocurrencies-shaktikanta-das/story/432317.html>.

[17] Subhajit Sengupta, “A Vehement ‘No’ to Cryptocurrencies but Blockchain is ‘Welcome’, Arun Jaitley Says” (News18, 1-2-2018) <https://www.news18.com/news/business/a-vehement-no-to-cryptocurrencies-but-blockchain-is-welcome-arun-jaitley-says-1648003.html>.

[18] NITI Aayog, “Blockchain: The India Strategy” (Draft Discussion Paper, January 2020) <https://niti.gov.in/sites/default/files/2020-01/Blockchain_The_India_Strategy_Part_I.pdf>.

[19] FE Bureau, “Cryptocurrency ban to be made explicit; Govt to introduce Bill soon” (The Financial Express, 4-3-2021) <https://www.financialexpress.com/money/cryptocurrency-ban-to-be-made-explicit-govt-to-introduce-bill-soon/2205896/>.

[20] Aashish Aryan, “More Liberal Debate Likely: Govt Wants Legal Opinion on Cryptos” (The Indian Express, 21-5-2021) <https://indianexpress.com/article/business/banking-and-finance/more-liberal-debate-likely-govt-wants-legal-opinion-on-cryptos-7323780/>.

[21] David Adler, “Silk Road: The Dark Side of Cryptocurrency” (FJCFL Blog, 21-2-2018) <https://news.law.fordham.edu/jcfl/2018/02/21/silk-road-the-dark-side-of-cryptocurrency/>.

[22] Robert McMillan, “The Inside Story of Mt. Gox, Bitcoin’s $460 Million Disaster” (Wired, 3-3-2014) <https://www.wired.com/2014/03/bitcoin-exchange/>.

[23] The Law Library of Congress, Regulation of Cryptocurrency Around the World (Global Legal Research Center, June 2018) <https://www.loc.gov/law/help/cryptocurrency/cryptocurrency-world-survey.pdf>.

[24] Sandeep Soni, “El Salvador Creates History: Becomes World’s First Country to Adopt Bitcoin as Legal Currency,” (The Financial Express, 9-6-2021) <https://www.financialexpress.com/economy/el-salvador-creates-history-becomes-worlds-first-country-to-adopt-bitcoin-as-legal-currency/2268056/>.

[25] Reuters, “IMF Sees Legal, Economic Issues with El Salvador Bitcoin Move” (The Economic Times, 10-6-2021) <https://economictimes.indiatimes.com/markets/cryptocurrency/imf-sees-legal-economic-issues-with-el-salvador-bitcoin-move/articleshow/83404747.cms>.

[26] (2020) 10 SCC 274.

[27] Foreign Exchange Management Act, 1999.

[28] Payment and Settlement Systems Act, 2007.

[29] (2020) 10 SCC 274.

[30] ET Bureau, “RBI’s Stance on Cryptocurrency Unchanged, Governor Das Says” (The Economic Times, 4-6-2021) <https://economictimes.indiatimes.com/tech/technology/rbis-concerns-on-cryptocurrency-remain-unchanged-governor-shaktikanta-das-says/articleshow/83230813.cms>.

[31] Amendments in Schedule III to the Companies Act, 2013, (Ministry of Corporate Affairs, 24-3-2021) <https://mca.gov.in/Ministry/pdf/ScheduleIIIAmendmentNotification_24032021.pdf>.

[32] Ridhima Saxena, “HDFC Bank, SBI Card Warn Customers of Restrictions if They Deal in Cryptocurrencies” (BloombergQuint, 29-5-2021) <https://www.bloombergquint.com/crypto/hdfc-bank-sbi-card-warn-customers-of-restrictions-if-they-deal-in-cryptocurrencies>.

[33] (2020) 10 SCC 274.

[34] Bloomberg, “Can a Cryptocurrency Break the Buck?” (Mint, 1-6-2021) <https://www.livemint.com/opinion/online-views/can-a-cryptocurrency-break-the-buck-11622504970042.html>.

[35] Priya Dialani, “Future of Cryptocurrency? Will it Grow or Stoop Low?” (Analytics Insight, 4-6-2021) <https://www.analyticsinsight.net/future-of-cryptocurrency-will-it-grow-or-stoop-low/>.

[36] Eric Lam, “Bitcoin Slips After Musk Tweets Broken-Heart Emoji for Token” (BloombergQuint, 4-6-2021) <https://www.bloombergquint.com/technology/bitcoin-drops-after-musk-tweets-broken-heart-emoji-for-token>.

[37] Bureau, “Cybercriminals go After Cryptocurrency: Report” (The Hindu Business Line, 5-6-2021) <https://www.thehindubusinessline.com/economy/cybercriminals-go-after-cryptocurrency-report/article34736492.ece>.

[38] (2020) 10 SCC 274.

[39] Shobhit Seth, “The 6 Most Private Cryptocurrencies” (Investopedia, 5-1-2021) <https://www.investopedia.com/tech/five-most-private-cryptocurrencies/>.

[40] Gaspare Jucan Sicignano, “Money Laundering Using Cryptocurrency:

The Case of Bitcoin!” Athens Journal of Law 2021 7(2) 253 <https://www.athensjournals.gr/law/2021-7-2-7-Sicignano.pdf>.

[41] Mike Orcutt, “Criminals Laundered $2.8 Billion in 2019 Using Crypto Exchanges, Finds a New Analysis” (MIT Technology Review, 16-1-2020) <http://technologyreview.com/2020/01/16/130843/cryptocurrency-money-laundering-exchanges/>.

[42] Nyman Gibson, “What is Bitcoin Laundering?” (NGM) <https://ngm.com.au/bitcoin-laundering/>.

[43] Sergi Delgadi-Segura et al., “Cryptocurrency Networks: A New P2P Paradigm”, Mobile Information Systems (Hindawi, 2018) <https://www.hindawi.com/journals/misy/2018/2159082/>.

[44] Section 12, PMLA.

[45] Matthew Leising, “Booming Decentralized Finance a Potential Haven for Money Laundering” (Bloomberg, 1-10-2020) <https://www.bloomberg.com/news/articles/2020-10-01/booming-crypto-market-a-potential-haven-for-money-laundering>.

[46] Ashwin Manikandan and Apoorva Mittal, “India’s Cryptocurrency Industry Draws Up ‘Legitimacy Plan’ ” (The Economic Times, 3-6-2021).

<https://economictimes.indiatimes.com/tech/technology/indias-cryptocurrency-industry-draws-up-legitimacy-plan/articleshow/83188685.cms>.

[47] Neil Borate, “What ED’s Notice to WazirX Means for Indian Crypto Traders?” (Mint, 15-6-2021) <https://www.livemint.com/market/cryptocurrency/what-ed-s-notice-to-wazirx-means-for-cryptotraders-11623689353255.html>.

[48] Ibid.

[49] (2020) 10 SCC 274.

[50] Harsh Bhuta, “Hold Crypto Assets? Here’s How you are Going to Pay Income-Tax on it” (The Economic Times, 6-6-2021) <https://economictimes.indiatimes.com/markets/cryptocurrency/hold-crypto-assets-heres-how-you-are-going-to-pay-income-tax-on-it/articleshow/83277122.cms>.

[51] United Nations Office on Drugs and Crimes, “Money Laundering” <https://www.unodc.org/unodc/en/money-laundering/overview.html>.

[52] Nic Carter, “How Much Energy Does Bitcoin Actually Consume?” (Harvard Business Review, 5-5-2021) <https://hbr.org/2021/05/how-much-energy-does-bitcoin-actually-consume>.

[53] Government of Canada, Digital Currency <https://www.canada.ca/en/financial-consumer-agency/services/payment/digital-currency.html>.

[54] Kalyeena Makortoff, “Cryptocurrency Dealers Face Closure for Failing UK Money Laundering Test” (The Guardian, 3-6-2021) <https://www.theguardian.com/technology/2021/jun/03/cryptocurrency-dealers-face-closure-for-failing-uk-money-laundering-test>.

[55] Tookitaki, Cryptocurrency Regulations in the United States <https://www.tookitaki.ai/compliance_hub/cryptocurrency-regulations-in-the-united-states/>.

[56] Press Release, “Owner of Bitcoin Exchange Sentenced to Prison for Money Laundering” (Department of Justice, 12-1-2021) <https://www.justice.gov/opa/pr/owner-bitcoin-exchange-sentenced-prison-money-laundering>.

[57] Press Release, “California Man Sentenced to 121 Months for Methamphetamine Trafficking” (Department of Justice, 29-4-2021) <https://www.justice.gov/usao-nh/pr/california-man-sentenced-121-months-methamphetamine-trafficking>.

[58] Section 2(s)(sa) of PMLA.

[59] (2020) 10 SCC 274.

Case BriefsSupreme Court

“To provide food security to impoverished persons is the bounden duty of all States and Governments.”

Supreme Court: The bench of Ashok Bhushan* and MR Shah, JJ has issued extensive directions to ensure the welfare of the migrant labourers who have been severely affected due to the outbreak of the COVID-19 pandemic.

Both, in the first and the second wave of the pandemic, migrant workers had been exposed to financial and other forms of hardships due to their limited access and claim to the welfare resources offered by the States/Union Territories. The migrant labourers are particularly vulnerable to the economic regression.

The Court, hence, noticed that,

“Our Constitution enjoins that the ownership and control of the material resources of the community are for promoting welfare of the people by securing social and economic justice to the weaker section so as to sub-serve the common good to minimize inequalities in income and endeavour to eliminate inequality in status.”

Hence, in order to ensure the unorganised/migrant labourers have access to at-least bare necessities of life, the Court issued the following directions:

(i) Portal for for registration of the unorganized labourers/migrant workers

    • The Central Government to develop the Portal in consultation with National Informatics Centre (NIC) for registration of the unorganized labourers/migrant workers.
    • The Central Government as well as the respective States and the Union Territories to complete the process of Portal for registration under National Data Base for Unorganised Workers (NDUW Project) as well as implement the same, which by all means may commence not later than 31.07.2021.
    • The process of registration of the unorganized labourers/migrant workers is completed at the earliest, but not later than 31.12.2021.
    • All the concerned States/Union Territories and the Licence Holders/Contractors and others to cooperate with the Central Government to complete the process of registration of migrant workers and unorganized labourers so that the benefits of the welfare schemes declared by the Central Government/State Governments/ Union Territories be available to migrant workers and unorganized labourers for whose benefits the welfare schemes are declared.

(ii) The Central Government having undertaken to distribute additional quantity of foodgrains as demanded by the States/Union Territories for distribution to migrant labourers under some Scheme framed by the States, we direct the Central Government, Department of Food and Public Distribution (Ministry of Consumer Affairs, Food and Public Distribution) to allocate and distribute foodgrains as per demand of additional food-grains from the States for disbursement of dry foodgrains to migran labourers.

(iii) States to bring in place an appropriate scheme for distribution of dry ration to migrant labourers for which it shall be open for States to ask for allocation of additional foodgrains from the Central Government, which, as directed above, shall provide the additional foodgrains to the State. The State shall consider and bring an appropriate Scheme, which may be implemented on or before 31.07.2021. Such scheme may be continued and operated till the current pandemic (Covid-19) continues.

(iv) The States, who have not yet implemented “One Nation One Ration Card” scheme are directed to implement the same by not later than 31.07.2021.

(v) The Central Government may undertake exercise under Section 9 of the National Food Security Act, 2013 to re-determine the total number of persons to be covered under the Rural and Urban areas of the State.

(vi) All the States/Union Territories to register all establishments and license all contractors under the Act, 1979 and ensure that statutory duty imposed on the contractors to give particulars of migrant workers is fully complied with.

(vii) The State/Union Territories are directed to run community kitchens at prominent places where large number of migrant labourers are found for feeding those migrant labourers who does not have sufficient means to procure two meals a day. The running of the community kitchen should be continued at-least till pandemic (Covid-19) continues.

[IN RE: PROBLEMS AND MISERIES OF MIGRANT LABOURERS, 2021 SCC OnLine SC 441, decided on 29.06.2021]


*Judgment by: Justice Ashok Bhushan

Appearances before the Court:

Tushar Mehta, Solicitor General for India, Dushyant Dave and Colin Gonsalves, senior counsel

Case BriefsCOVID 19High Courts

Chhattisgarh High Court: A Division Bench of Prashant Kumar Mishra ACJ. and Parth Prateem Sahu, J. laid down noteworthy observations regarding various issues brought to the notice of the Court related to Covid.

The instant PIL was registered suo moto by the Court to take stock of the various issues that arose due to the coronavirus crisis.

It was submitted that the figures of vaccination provided therein are in violation of category-wise allocation of vaccination under the State Government’s order dated 9-5-2021. It was also submitted that the problem arising out of issuance of a defective certificate in respect of vaccination inasmuch as a person getting Covishield jab is issued a certificate of Covaxin jab.

Counsel for the State submitted that the State is making all possible efforts to adhere to its policy by maintaining the ratio of the percentage of vaccination amongst different categories as per its order dated 9-5-2021, while at the same time minimising the wastage.

The Court observed that violation of percentage of allocation for a particular category is happening because the vaccines are to be utilised at the center as is allocated for the given day so that there is minimum wastage and due to digital divide.

The Court observed that the whole vaccination programme is such a complex phenomenon that adherence to the percentage in precise terms is very difficult to achieve. It is the intent of the respondent to provide jab to the citizens which is more important than some glitches which are occurring at some places either while issuing a different certificate or the difficulties in scheduling for the second dose.

The Court observed, “the State shall ensure that the dead bodies are buried/cremated in a decent and respectful manner as the right to be respectfully and decently buried/cremated has always been treated to be inclusive in the right to life under Article 21 of the Constitution of India.”

The Court directed the State Government to take all necessary precautions that a person getting first jab of a particular brand/company, is issued the certificate of the same jab and not the other one.[Suo Moto WP (PIL) v. State of Chhattisgarh, 2021 SCC OnLine Chh 1426, decided on 04-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Advocate for Petitioner: Mr. Rakesh Pandey

Amicus Curiae: Mr. Prafull N Bharat

Advocate for UOI. Mr. Ramakant Mishra

Advocate for Railways: Mr. Abhishek Sinha

Advocate for SLSA: Mr. Ashish Shrivastava

Advocates for the respective Interveners: Mr. Palash Tiwari, Mr. Anumeh Shrivastava, Mr. Devershi Thakur, Mr. Arjit Tiwari, Mr. Aman Pandey

Intervenor in Person-  Mr.  Himanshu Choubey

Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan and MR Shah, JJ has refused to pass any direction in the petition seeking effective and remedial measures to redress and overcome the financial stress and hardship faced by the borrowers of the country during the second wave of Covid 19 and lockdown.

The Circular of the Reserve Bank of India (RBI) dated 05.05.2021, by which the Reserve Bank of India has issued Resolution of Covid 19 related stress of Micro, Small and Medium Enterprises (MSMEs), was put before the Court in support of the petition. It was argued that the Circular does not sufficiently address the hardship of the borrowers.

The Court, however, said,

“Be that as it may, the financial relief and other measures are in the domain of the Government and essentially related to policy matter.”

It is pertinent to note that the 3-judge consisting of both the judges of the present bench, along with R. Subhash Reddy, J had, in a breather to customers in the case relating to waiver of interest on loan during the moratorium period, directed that all steps to implement the decision dated 23.10.2020 of the Government of India, Ministry of Finance be taken so that benefit to the eight categories contemplated in the affidavit can be extended.

Read the full report on the said order here:

COVID-19| Seeking waiver of interest on interest for loan during the moratorium period? SC asks Govt to implement decision to forego compound interest on these 8 categories

The Court, hence, left it to the Union of India and the Reserve Bank of India to consider and take appropriate decision in the matter.

[Vishal Tiwari v. Union of India, 2021 SCC OnLine SC 423, order dated 11.06.2021]


For Petitioner: Petitioner-in-person

For Respondent: Mr. Tushar Mehta, SG

Ms. Aishwarya Bhati, ASG

Mr. Rajat Nair, Adv.

Mr. Kanu Agrawal, Adv.

Mr. B.V. Balramdas, AOR

Case BriefsCOVID 19High Courts

Madhya Pradesh High Court: The Division Bench of Mohammad Rafiq, CJ. and Sujoy Paul, J., decided on a petition which was filed with the prayer that members of Junior Doctors Association (JUDA) of Government Medical Colleges in the entire State of Madhya Pradesh and other Associations or Unions of Doctors/Medical Officers/ Nurses/Medical Staff, should be restrained from continuing with the strike and that direction be given to the State Government to initiate appropriate action against the erring directors under the Essential Services Maintenance Act, National Disaster Management Act and the Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002 and that action be taken against the members who have by proceeding on strike committed contempt of the orders passed by this Court.

Mr Pranay Choubey, counsel for the petitioner had submitted that members of Junior Doctors Association, who were students of post graduation study course in various branches of medicine had abstained from work w.e.f. 31-05-2021, demanding increase in their stipend, as a result of strike the emergency services in all type of hospitals had been shut down.

Mr Rishi Shrivastava and Mr Siddharth R. Gupta, counsel for the striking doctors argued that

  • first demand of the Junior Doctors was for increase in the amount of stipend which was static for past many years
  • second demand of the junior doctors was that they should be provided adequate security at the work place as in certain incidents they were subjected to not only misbehavior but also beating by the attendants and family members
  • if they and their family members were infected with corona virus, they should be provided free of cost treatment in the same hospital where they were working
  • fourth demand was that the medical colleges should waive the fee for the period of extension of the study course of post graduation and diploma over and above the period of three years
  • fifth demand was that 10% additional/extra marks given to the P.G. students who are rendering their services in rural/ remote/ difficult areas

Mr Purushendra Kaurav, Advocate General submitted that the resident doctors by proceeding on strike have committed contempt of the order of this Court and that the state government may consider their demand only if they first call off the strike and resume the duty.

The Court observed that All doctors have a solemn duty towards humanity. This duty binds them to serve the citizens suffering from any kind of disease. In the present scenario, this duty requires them to join hands with all fellow citizen in fight against the ongoing pandemic of Coronavirus. The Court was of the view that in this crucial phase of our lives when whole of the country is grappling with the deadly menace of Covid-19 following its second wave, the striking doctors have completely forgotten the solemn oath taken by them in the above extracted declaration. We quite appreciate that they have suffered hardship and rendered duties at odd hours at the cost of their health. But at the same time it is also equally true that they have chosen a wholly inappropriate time to press for their demands, howsoever reasonable they may be, by proceeding on strike.

The Court declared that the strike by junior doctors was illegal and directed them to immediately resume their duties and if they do so a high powered committee consisting of the Chief Secretary of the State, Additional Chief Secretary, Medical and Health and the Commissioner, Medical Education shall immediately call them for negotiation. If they failed to do so within 24 hours, it would be open for the government to take any legal action against them as it may deem fit in accordance with law.[Shailendra Singh v. State of M.P., 2021 SCC OnLine MP 1034, decided on 03-06-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and MR Shah, JJ has stayed the Delhi High Court’s order holding the levy of IGST on oxygen concentrators imported as gifts for personal use violative of Articles 14 and 21 of the Constitution.

The Ministry of Finance had, through Attorney General K K Venugopal, had argued that on 28 May 2021, at the Forty-Third meeting of the GST Council, a decision was taken to constitute a Group of Ministers to scrutinize the need for “further relief to Covid-19 related individual items immediately”. The Group of Ministers is to submit its report by 8 June 2021.

“… the judgment of the High Court trenches upon a pure issue of policy.”

It was further argued that the exemption which has been granted in respect of the concentrators which are imported by the State or its agencies falls in a clearly distinct classification.

Issuing notice returnable after 4 weeks, the Court directed,

“Till the next date of listing, there shall be a stay of the operation of the impugned judgment and order of the High Court dated 21 May 2021.”

[Ministry of Finance v. Gurcharan Singh, Special Leave to Appeal (C) No.7226/2021, order dated 01.06.2021]


Also read our full report on the Delhi High Court’s order dated May 21, 2021:

Del HC | “I can’t breathe”; HC calls oxygen shortage a ‘George Floyd moment for the citizens’; holds imposition of IGST on oxygen concentrators imported by individuals, unconstitutional

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Rajiv Shakdher and Talwant Singh, JJ., disposed of the petition which was filed in order to decide the constitutionality of imposition of IGST on the imported oxygen concentrators. The Court in its prologue said,

“This is a George Floyd moment for the citizens of this country. The refrain is ―I can’t breathe‖, albeit, in a somewhat different context and setting; although in circumstances, some would say, vastly more horrifying and ghastlier. Chased and riven by the merciless novel Coronavirus, the citizenry has been driven to desperation and despair.”

The petitioner was 85 years old and had approached the Court against the imposition of IGST on the import of the oxygen concentrator which had been gifted to him by his nephew. The petitioner asserted that the imposition of tax was discriminatory, unfair, and unreasonable and that it impinges upon his right to life and health. The clearance of the oxygen concentrator from the customs barrier required payment of IGST at the rate of 12%. It is relevant to note that before 01-05-2021, an individual importer would have had to pay IGST at the rate of 28% qua oxygen concentrator gifted to him for personal use.

The State had issued an impugned notification dated 01-05-2021 whereby IGST on oxygen concentrators imported by individuals for personal use, that are supplied free of cost, was scaled down to 12% and it further issued a notification dated 03-05-2021 whereby it exempted, completely, oxygen concentrators imported for the purpose of COVID relief from the imposition of IGST in cases, where the importer was the ―State Government or, any entity, relief agency or statutory body, authorised in this regard by any State Government” till 30-06-2021.

Major submissions made on behalf of the Amicus and the petitioner: –

  1. The interplay of provisions of The Customs Act, 1962 [Customs Act],The Customs Tariff Act, 1975 [CTA], The Goods and Services Tax Act, 2017[GST Act], and The Integrated Goods and Services Tax Act, 2017[IGST Act] allows for the imposition of Basic Customs Duty [in short ―BCD‖] and IGST on goods imported into the country at the rates stipulated in the CTA.
  2. The source of power to levy and collect IGST on imports is rooted in the explanation appended to Article 269A (1) of the Constitution.
  3. With the enactment of the GST Act, it is now possible to levy simultaneously both Central GST as well as State GST. Excluding 6 items, Central Sales Tax Act, 1956 [CST Act] stands substituted by the IGST Act. Article 246A(2) gives Parliament the exclusive power to levy GST on the supply of goods and services that takes place in the course of inter-state trade and commerce.
  4. Section 3(7) of the CTA which allows for levy of IGST on imported goods pegs the ceiling rate at 40%. The provision for valuation is provided under Section 3(8) and 3(8A) of the CTA. Section 3(12) contains the power for exempting, inter alia, the levy of IGST.
  5. Thus, in effect, from 01.07.2017, BCD is levied on imported goods under the Customs Act and IGST is leviable under Section 3(7) of the CTA read with Section 5 of the IGST Act.
  6. A perusal of the Mega Exemption Notification no. 50/2017, dated 30.06.2017, (which superseded notification 12/2012 dated 17.03.2012) [General Exemption no. 190‖] would show that qua several items where BCD is exempt or reduced, the IGST is nil. This has been a longstanding practice even prior to the issuance of Mega Exemption Notification.
  7. In the notification issued by Directorate General of Foreign Trade, Department of Commerce, Ministry of Commerce and Industry [in short ―DGFT‖], whereby oxygen concentrators were exempted from customs duty/BCD, IGST, via a separate notification, i.e., notification no. 30 of 2021 dated 01-05-2021 was reduced from 28% to 12% qua imports made for personal use. An exception was, however, made insofar as oxygen concentrators imported by a canalising agency was concerned. In such cases, vide notification no. 4 of 2021 dated 03-05-2021, complete exemption from IGST was granted, albeit, subject to certain conditions.
  8. Furthermore, a perusal of entry no. 607A1 of General Exemption no. 190 would show that complete exemption from BCD and IGST is granted for life-saving drugs/medicines imported for personal use which are supplied free of cost by overseas supplier.
  9. Oxygen concentrators would fall within the ambit of Entry no. 607A, Tariff Item no. 9804 of the General Exemption no. 190, as the definition of drugs as provided in Section 3(b) of the Drugs and Cosmetics Act, 1940 [in short ―Drugs and Cosmetics Act‖] would include medical equipment used for treating and preventing human disease. Furthermore, since an oxygen concentrator is, undoubtedly, a piece of life-saving equipment, it should not be subjected to the rigour of certification by officials, named in condition no. 104 stipulated against entry no. 607A.
  10. The impugned notification violates not only the right to health but also the right to human dignity which is interwoven in Article 21 of the Constitution.

Major submissions advanced on behalf of the State: –

  1. Since GST rates and general exemptions are notified based on the recommendations of the GST Council, the request received by the Government of India for extending GST exemptions qua COVID-19 related supplies shall be placed before the GST Council. The GST Council will consider the same and take steps having regard to the relevant factors and the situation prevalent in the country.
  2. The Government of India has provided considerable relief insofar as oxygen concentrators imported for personal use are concerned- BCD hasbeen reduced from 38.5% to nil while IGST has been scaled down from 28% to 12%. The reduction in the rate of IGST from 28% to 12% has been brought about for bringing about parity between oxygen concentrators imported for commercial purpose as against those imported for personal use.
  3. The decision to impose a tax and/or the fixation of the rate at which tax is to be imposed cannot be subjected to judicial review.
  4. The imposition of IGST on imported oxygen concentrators, which are gifted, and are for personal use, does not violate Article 21 of the Constitution. If this argument of the petitioner is accepted, it will lead to absurd consequences in as much citizens will attempt to seek exemption from property tax, and food items since both housing and food items have been considered as a facet of the right to life as encapsulated in Article 21 of the Constitution.

Analysis and Decision

The Court laid down some immutable ground rules to examine challenge laid to tax legislations and levying of tax in extraordinary times and formed main issues to be dealt with.

  1. Whether the State’s action, of imposing IGST on oxygen concentrators, which were directly imported by individuals, albeit free of cost, without the aid of a canalising agency runs afoul of Article 14 of the Constitution?
  2. Whether Article 21 of the Constitution, which includes the right to health and affordable treatment, would require the State to demonstrate that levy and collection of the impugned tax in times of pandemic, war, famine, floods, and such like conditions would subserve public interest?
  • Whether Article 21 of the Constitution, imposes on the State, a positive obligation to provide adequate resources for protecting and preserving the health and well-being of persons residing within its jurisdiction?
  1. What relief, if any, can be granted to the petitioner?

Issue 1

The Court found, The exclusion of individuals, such as the petitioner, from the benefits of the 03.05.2021 notification only because they chose to receive the oxygen concentrators as a gift, albeit directly, without going through a canalizing agency is, in our opinion, violative of Article 14 of the Constitution. While it is permissible for the State to identify a class of persons, to whom tax exemption would be extended, it is not permissible for the State to exclude a set of persons who would ordinarily fall within the exempted class by creating an artificial, unreasonable, and substantially unsustainable distinction.

Issue 2 &3

Exaction by the State, in the form of tax, in good and normal times, is, ordinarily, sustained by the Courts as they defer to the legislative wisdom that the imposition of the tax is for the greater good of the public; unless proved to the contrary. However, in times of peril, the Courts must examine the stand taken by the State to defend an action instituted to lay challenge to a tax – on anvil of Article 21 of the Constitution; as it is not the form but the impact of the tax which will determine its tenability. The Court said that in this context it must be said that there was a positive obligation on the State to take ameliorative measures so that adequate resources are available to protect and preserve the health of persons residing within its jurisdiction. The Court quoted from the Supreme Court verdict in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1,

“―495. The jurisprudence of this Court, in recognising the right to health and access to medical care, demonstrates the crucial distinction between negative and positive obligations. Article 21 does not impose upon the State only negative obligations not to act in such a way as to interfere with the right to health. This Court also has the power to impose positive obligations upon the State to take measures to provide adequate resources or access to treatment facilities to secure effective enjoyment of the right to health. [ Jayna Kothari, ―Social Rights and the Indian Constitution‖, Law, Social Justice and Global Development Journal (2004).]‖”

In the same vein, the notification dated 03-05-2021 exempts imposition of IGST on oxygen concentrators which are imported free of cost, albeit, via canalizing agency up until 30-06-2021. The State could have, if it intended to treat, persons who are similarly circumstanced as the petitioner, at par with those who fall within the sway of the notification dated 03-05-2021- extended the exemption to them as well and withdrawn the same once normalcy was restored.

Issue 4

The Court opined that a declaratory relief can be accorded, to the effect, that imposition of IGST on oxygen concentrators, imported as gifts, i.e., free of cost, for personal use, is violative of Article 14 of the Constitution on the ground that an artificial, unfair and unreasonable distinction has been drawn between persons, who are similarly circumstanced as the petitioner and those who import oxygen concentrators through a canalizing agency.

The logical sequitur of this would be that persons who are similarly circumstanced as the petitioner, i.e., those who obtain imported oxygen concentrators as gifts, for personal use, cannot also be equated with those who import oxygen concentrators for commercial use. Therefore, notification bearing no. 30 of 2021-Customs, dated 01-05-2021, will also have to be quashed.

The State had argued that the Court cannot issue a writ of mandamus directing the State to issue an exemption notification in favour of the petitioner or persons similarly circumstanced. The power to issue an exemption notification under Section 25 of the Customs Act is vested in the State however the Court was not prevented from judicially reviewing an exemption notification once it is issued by the State.

The Court concluded that imposition of IGST on oxygen concentrators which were imported by individuals and were received by them as gifts [i.e. free of cost] for personal use, was unconstitutional.

[Gurcharan Singh v. Ministry of Finance, 2021 SCC OnLine Del 2312 , decided on 21-05-2021]


 

Suchita Shukla, Editorial Assistant has put this report together 

For the petitioner: Mr Sudhir Nandrajog, Senior Advocate with Mr Siddharth Bambha, Mr Shyam D Nandan and Mr Chirag Ahluwalia

For the respondent: Mr Zoheb Hossain, Sr. Standing Counsel, Mr Arvind Datar, Senior Advocate as Amicus Curiae with Mr Rahul Unnikrishnan

Case BriefsHigh Courts

Tripura High Court: The Division Bench of Akil Kureshi, CJ., and S. Talapatra, J., activated a public interest petition which was initiated suo moto by the High Court last year when the so-called first wave of corona virus was swiping the whole country and also affecting the State of Tripura. For a while it appeared that the corona virus had subsided. However, by way of abundant caution, this public interest petition was kept alive, not realizing that unfortunately, the situation may arise where further hearing of this PIL would be necessary.

While fortunately the second wave of Covid 19 was somewhat delayed in Tripura compared to the other states of the country, the administration had a longer notice and therefore more time to prepare to meet with the challenges. The Court requested the administration to provide further data and make a few constructive suggestions such as the number of testing each day. The Court emphasized on the importance of wearing masks at all public places, to ramp up testing followed by isolation of those who might have recently been in contact with the corona positive patients and lastly, to vaccinate as quickly and as widespread a population as possible in order to control the overall spread of corona virus.

The Court as a precautionary measure requested the State administration to provide an affidavit on the next day of hearing i.e 17-05-2021 with the following mentioned data:

  • Whether there is any scientific model available with the State Government on the basis of which with reasonable accuracy the peak number of corona positive cases per day can be predicted.
  • If so, on the basis of this model it is possible to project the peak requirement of hospital beds with a break up of those required with oxygen and without oxygen.
  • The availability of total number of such beds with and without oxygen supply.
  • What could be the maximum oxygen demand in terms of units/quantity at the peak of the spread of virus and what is the availability of the oxygen with the State administration. The source of continuous supply of such oxygen will also be disclosed.
  • The availability of remdesivir dozes and other life saving drugs including steroids which may be required in emergency for extreme cases of corona infection. The availability of equipments for treating serious cases of corona virus shall also be stated.
  • Whether the hospitals in the State have any special arrangements for pediatric corona patients and whether any such specialized dedicated ward or arrangement is necessary or would be required in coming days.
  • In the affidavit, the deponent has provided the data about the persons already vaccinated for the first time and also second time. The affidavit also states that the State Government has decided to vaccinate the entire population above the age of 18 free of cost.

The Court stated that affidavit shall state the percentage of those who qualify for vaccination have already been vaccinated first time and second time as also when shall the persons above the age of 18 but below the age of 45 shall have excess to vaccination and rough timelines within which the State administration expects to cover substantial portion of the population which is eligible for such vaccination. The affidavit shall also state exact dozes of vaccination currently available with the State administration and further expected availability from time to time.

For Court on own motion: Mr Somik Deb, Amicus Curiae. For Respondent(s) : Mr S.S. Dey, Advocate General. Mr Debalay Bhattacharjee, GA. Ms Ayantika Chakraborty, Advocate.

[Court on its own motion v. State, 2021 SCC OnLine Tri 265, decided on 10-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

Case BriefsCOVID 19High Courts

Himachal Pradesh High Court: A Division Bench of Tarlok Singh Chauhan and Chander Bhusan Barowalia, JJ passed directions against the respondents in addition to the directions already passed in CWPIL No. 11 of 2020.

The instant petition was filed as a pro bono publico for grant of appropriate directions to ensure that all the Covid patients are provided adequate medical facilities including beds, medicines and ventilators at the Dr. Y.S. Parmar Medical College and that the Covid patients at Nahan Government Hospital are properly and regularly attended to and treated by the doctors and not be left at the mercy of the medical support staff and to further ensure immediate installation and functioning of the ventilators already supplied and available in the Hospital and that every doctor at the hospital may kindly be made personally responsible and liable to ensure that the critical Covid patients requiring oxygen are put on ventilators forthwith in order to prevent further loss of life and to complete the installation and functioning of the existing oxygen manufacturing plant in the Nahan Medical College premises forthwith from its emergency fund without waiting for the resolution of the dispute with the supplier of the said oxygen plant and machinery. An appropriate direction is also requested as the nodal agency to execute and monitor the financial obligations of the State under the Disaster Management Act, 2005 and lastly to designate the Nahan Medical College as Covid 19 dedicated hospital for the district.

The main issue is about lack of oxygen facilities at Dr. Y. S. Parmar Government Medical College, Nahan and non-functioning of 25 ventilators which have been given to the Medical College under the HIM Care Scheme in July, 2020.

Counsel for the petitioners submitted that in view of the surge of Covid cases, the hospital at Nahan is far too small to handle Covid cases as it has only 20 Covid ICU beds and additional 10 beds which are being maintained through ‘D’ type oxygen cylinders to deal with the Covid patients. Whereas, taking into consideration the sudden surge in the Covid positive patients, the facility for atleast 500 persons should be made available by the Government.

The Court laid directions due to drastic surge in the Covid-19 positive cases and as the fatality in the State are highest in the Country. The directions are:

  • Increase the number of authorized laboratories/clinics/hospitals which can carry on the testing for a larger percentage of population
  • Increase the number of testing being done in the bigger towns of the State. The State Government should consider the use of other kits, besides the Rapid Antigen Kit, or the RT PCR tests, for increasing the tests being carried out on daily basis.
  • In order to increase the testing facilities in the hill districts of the State, the State Government should consider sending of ‘mobile vans’ which are fully equipped for carrying out the testing of COVID-19 virus.
  • The State should increase the number of dedicated COVID-19 Hospitals. For, merely having few dedicated COVID-19 hospitals, is too little to tackle the menace, especially when the pandemic is likely to spread and increase throughout the State in the coming months.
  • The State is also directed to consider the feasibility of establishing temporary hospitals with the help of any other Central agency.
  • The State is directed to increase the number of beds available in the hospitals. It shall ensure that the majority of the beds are equipped with Oxygen tank and sufficient numbers of bed are equipped with ventilators. If necessary, the number of ICUs in the hospitals should be increased. This is essential as it is claimed that the second strain directly affects the lungs of the patient. Therefore, the patient needs to be given intensive care, and may require to be put on ventilator immediately.
  • The State Government is directed to ensure that the PPE kits and other protective gears, such as gloves, masks, and sanitizer are provided to all the medical staff, especially to the Doctors, Nurses, Ward Boys to look after the COVID-19 patients. Until and unless our front line worriers are protected from COVID-19 virus, it will be impossible for us to win the battle against the COVID-19 virus.
  • The State Government is directed to publish the names and locations of the testing centres, and the names and locations of Hospitals/Dedicated COVID-19 Health Care Centres in the media bulletin on a daily basis. The media bulletin should clearly indicate the total number of beds available in each hospital/Dedicated COVID- 19 Health Care Centres, and the number of vacant beds available in each hospital. It should also indicate the class of the beds i.e. the number of beds attached with ventilators, number of beds attached with Oxygen cylinders and the number of beds without any Oxygen tank/ Cylinder.
  • We make it absolutely clear that in case the private hospitals refuse to cooperate or reluctant to provide Covid test and covid facilities, then the State Government shall forthwith resort to coercive steps as provided under the Disaster Management Act and also Essential Services Maintenance Act. In addition thereto, wherever private hospitals have been granted incentives like plots on concessional rates etc. etc. The State Government shall be free to withdraw the incentive/ recover the amounts etc. Lastly, the State may proceed to take any other coercive or punitive step as may be warranted and otherwise permissible under the law.
  • The State should also consider the purchasing of additional CT Scan Machines in the State as it is learnt that this machine is essential to detect the presence of the second strain of Covid-19 virus.

The Court further directed to furnish the following informations:

i) Available bed capacity exclusively for Covid-19 facilities in the State both in Government and private hospitals alongwith the details of the availability of oxygen (high flow or otherwise).

ii) State shall give the details of the steps taken and proposed to augment the availability of oxygen meeting both the current and projected requirements.

iii) Place on record the plan prepared by the State Government under the Disaster Management Act to tackle the Covid-19 cases.

iv) Steps taken to ensure the availability of essential drugs including Remdesivir, Favipiravir and Tocilizumab amongst other prescribed drugs and the modalities which have been set up for controlling the essential drugs for preventing hoarding and ensuring the proper communication of the requirement at the level of each Districts by the District Health Authorities or the Collectors of the Health Department of the State.

v) The details of the steps taken by the Government to comply with the judgment of the Hon’ble Supreme Court in suo motu Writ Petition (Civil) No. 3 of 2021 in Re: Distribution of Essential Supplies and Services during pandemic, dated 30.04.2021.

vi) Furnish the details of the staff alongwith their designation who have been deputed in the Covid hospitals, both Government and Private.

vii) Respondent No.4 shall furnish the details with regard to distribution of Remdesivir, Favipiravir and Tocilizumab from the Central Government to the State Government up-to-date and why the State of Himachal Pradesh has been discriminated while making allocations of Tocilizumab vide letter dated 27.04.2021 and why allocation of only 3000 Remdesivir vials was made to the State of Himachal Pradesh in comparison to the States with lesser population and with far lesser Covid- infections.

viii) The State shall provide details along with data with regard to distribution of the oxygen and further the details proposed to augment the supply of oxygen.

ix) The State shall furnish the data and also give the data-wise demand and supply of oxygen for the last two weeks as well as future projected demand and the measures taken for meeting such demand.

x) The State shall ensure the uploading of real time data about the availability of beds in each hospital of the State for Covid-19 patients on its Web Portals and also on the Web Portals of all the Hospitals and also physically display the data outside each hospital on daily basis .

xi) As regards the availability of beds in hospital, the following parameters of information must be placed in the public domain by the State Government for all Covid designated hospitals in the State, both public and private through dedicated website and physically outside the hospital.

(a) Name and address of hospital;

(b) Total number of designated Covid-19 beds;

(c) Total number of available designated Covid-19 beds;

(d) Number of beds available in ICUs with ventilators.

(e) Number of beds in ICUs without ventilators;

(f) Number of general hospital beds available with oxygen;

(g) Number of general beds available without oxygen facility.

(h) Date and time when this information was last updated;

(I) Name and mobile number of the Nodal Officers for admission to the hospital;

(j) Link to GPS location of the hospital (only for website).

Such information must be updated once every eight hours and it must be ensured that the site is not password protected and does not require any login credentials to view this information.

(xii) The State shall also furnish the steps taken regarding the availability of oxygen for those all the Covid-19 patients, who though may in home isolation but require oxygen.

xiii) Experts speculate a third wave and, therefore, the State shall disclose its road-map in case third wave strikes.

(xiv) The State has not carried out any Vaccination Programme for those aged between 18 to 44 on the pretext of non-availability of vaccine. Therefore, the State Government is directed to disclose clearly as to from which date, it shall commence the vaccination for the age group as aforesaid.

(xv) The State shall furnish its stand regarding the importance (if any) of the ventilators in treatment of Covid and how it proposes to put to use the ventilators that are lying idle with the State in various hospitals.

(xvi) The State is directed to furnish the complete details regarding the availability of essential medicines required for the treatment of Covid-19 patients, more particularly, the availability of Remdesivir, Favipiravir and Tocilizumab and in case of short-fall, the steps taken in this regard.

(xvii) In the meanwhile, respondent No.4 is directed to ensure the adequate availability of the essential drugs, more particularly, the life saving drugs to the State of Himachal Pradesh and enumerate in detail the steps taken in this regard on or before the next date of hearing.

[Ashutosh Gupta v. State of HP, 2021 SCC OnLine HP 4555, decided on 06-05-2021]


Arunima Bose, Editorial Assistant has put this report together 

Counsel for petitioners: Mr. B.N. Misra and Ms. Vandana Misra.

Counsel for the State: Mr. Ashok Sharma and Mr. Ajay Vaidya

Counsel for respondent 4: Mr. Balram Sharma

Case BriefsCOVID 19High Courts

Delhi High Court: The Division Bench comprising of Vipin Sanghi and Rekha Palli, JJ., addressed the issue regarding rising death toll due to Covid-19, scarcity of medical oxygen and unavailability of supply tankers in NCT of Delhi (NCTD). The Bench stated,

“We have been seeing for ourselves, day after day, how large and small hospitals, nursing homes and even individuals are running to us with SOS calls for supply of medical oxygen.”

Issues Raised by NCTD

  1. Amicus Curiae, Rajshekhar Rao had submitted that though the Central Government had revised the allocation of oxygen to GNCTD to 590MT, the allocation orders did not take into account the capacity of the supplier. And the suppliers had expressed their inability to supply allocated oxygen stock.
  2. Reportedly, certain States which were allocated higher amount of oxygen, are reportedly witnessing a dip in their oxygen demand and not lifting their total allocated supply, therefore, the Central Government should reconsider the issue of allocation of oxygen to States, allocation of oxygen by each supplier and rationalize allocation of oxygen tankers by factoring into account the real-time requirement of oxygen in various states on a regular basis shall be done.
  3. It was further requested that the Central Government be directed to take over all the tankers in the country as a national resource and thereafter, rationally deploy the them to meet the needs of all the States and Union Territories.
  4. The GNCTD had been earmarked from suppliers who are situated at a distance of 1200 to 1500 kms from Delhi, the Central Government be directed to explore other routes as suggested by the GNCTD to enable the GNCTD to receive the oxygen from the sources in a more organized and timely manner.

Emergency Buffer Stock of Oxygen

To meet the present demands of Oxygen in the NCT of Delhi, the Bench directed the Central Government to prepare a buffer stock of Oxygen of at least, 100 MT in the NCT of Delhi in collaboration with the GNCTD, to be used for emergency. The Bench observed that the Supreme Court has already issued directions to the Central Government, and the GNCTD to act in this regard by order dated 30.04.2021:

We have also seen the situation that has developed in the last 24 hours in Delhi where patients, including among them medical professionals, died because of the disruption of supplies and the time lag in the arrival of tankers. This deficit shall be rectified immediately by the Central Government by creating buffer stocks and collaborating with the States through the virtual control room on a 24 by 7 basis.

Thus, the Bench directed the Central Government to, in collaboration with the GNCTD set up a buffer stock of 100 MT of liquid medical oxygen (LMO) in the NCT of Delhi with the further directions to do the same within next 3 days. .  The Center government was also directed to share with the GNCTD the registration numbers of the Tankers allocated for it with their GPS trackers.

Crowd Management

Observing that there are long queues at the locations of the re-fillers and Liquid Oxygen being explosive there are possibility of life causing accidents, at the request of GNCTD the Bench seek response from the Center government within 2 days for deploying a dedicated force for the purpose of crowd management at the re-filling depots preferably, Central Para Military Forces, since they are adept in crowd management respond within two days.

Dissemination of Information

Observing that the general public is still not fully aware of the protocols, the Bench directed the ICMR and the Ministry of Health and Family Welfare, to look into expanding their reach and to disseminate information through WhatsApp and other print and audio-visual media regarding the aspects of COVID-19 protocol evolved by it, proper use of oxygen concentrators as well as cylinders, right time to seek medical attention and information about the concerning symptoms.

Supply of LMO

Taking note of the fact that GNCTD is still not receiving 700MT of liquid medical oxygen per day; even though the Supreme Court while passing its detailed order dated 30-04-2021, had directed compliance by the Union of India. The Bench rejected the submission of Mr. Sharma, counsel for Union Government that a compliance affidavit is being filed in the Supreme Court tomorrow. The Bench stated,

“We fail to understand what a compliance affidavit would do when, as a matter of fact, 700MT of liquid medical oxygen is not being delivered to Delhi on a daily basis. In fact, even the earlier allocated quantity of 490MT, which has been revised to 590 MT per day, has not been delivered for a single day.”

The Bench remarked that unfortunately, the heart-wrenching situation on the ground in Delhi  is something not present to the mind of the Central Government.  Rejecting the submission of Counsels for Union Government, Mr. Sharma and Ms. Bhati that the GNCTD is not entitled to receive 700MT of liquid medical oxygen in the light of the existing medical infrastructure, the Bench expressed,

It pains us that the aspect of supply of liquid medical oxygen for treatment of covid patients in Delhi should be viewed in the way it has been done by the Central Government.”

Lastly, a show cause notice was issued to the Central Government as to why contempt action should not be initiated for not only non-compliance of the order of this Court dated 01-05-2021, but also of the order passed by the Supreme Court dated 30-04-2021. To answer the said notice, the Union ministers Mr. Piyush Goyal and Ms. Sumita Dawra were directed to appear before the Court in the next hearing.

[Rakesh Malhotra v. NCT of Delhi and Balaji Medical And Research Center, 2021 SCC OnLine Del 1869, order dated 04-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

For the Petitioners: Sr. Adv. Sacchin Puri, with Adv. Praveen K. Sharma and
Adv. Dhananjay Grover

For the Union of India: SGI Tushar Mehta, ASG Chetan Sharma, CGSC Monika Arora, CGSC  Amit Mahajan, CGSC Anil Soni, CGSC Anurag
Ahluwalia, Adv. Shriram Tiwary, Adv. Amit Gupta, Adv. Akshay
Gadeock, Adv. Sahaj Garg and Adv. Vinay Yadav

For NCT of Delhi: Sr. Adv. Rahul Mehra, ASC Satyakam, Sr. Adv. Santosh
Tripathi, ASC Gautam Narayan, ASC Anuj Aggarwal, ASC Anupam Srivastava, Adv. Aditya P. Khanna, Adv. Dacchita Sahni, Adv. Ritika Vohra and Adv. Chaitanya Gosain

Case BriefsCOVID 19High Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Rekha Palli, JJ., while addressing the concerns arising out the COVID-19 pandemic, expressed that:

The lives of the people take priority over everything else.

Rahul Mehra, Senior Counsel, Central Government in its affidavit stated that though all efforts were made to file the affidavit on behalf of GNCTD, the same could not be completed and filed.

Bench perused the affidavit filed on behalf of the Central Government by Mr Rajender Kumar, Under Secretary, Ministry of Health and Family Welfare.

What all the affidavit has dealt with?

  • Availability of COVID Beds as made available by the Central Government in the NCT of Delhi.
  • Discloses that 500 ICU Bedded DRDO COVID Care Hospital be established in Delhi Cantt.
  • 250 ICU Beds have been operationalized by DRDO and another 250 beds shall be operationalized by 22-04-2021.
  • To provide 25 medical officers and 75 paramedics to this COVID Care Centre from Central Armed Paramilitary Forces.

VENTILATORS

Further, Centre has also called upon the States and UTs to provide their requirements for ventilators in the States, so as to consider the supply of ventilators as per the availability at the earliest. Adding to this, it was stated that as per the demand of the GNCTD, 763 ventilators have been supplied by the Government of India. In addition to that, Safdarjung Hospital has been provided with 105 ventilators, Ram Manohar Lohia Hospital with 5 ventilators, LHMC with 5 ventilators, Ayush Hospital with 2 ventilators, ESIC Hospital with 10 ventilators and the DRDO facility has been provided with 500 ventilators.

BEDS FOR COVID PATIENTS 

In Central Government-run hospitals, the availability of beds for COVID Patients is up to 1432 beds. Other hospitals and facilities – other than those detailed in the affidavit, 2105 beds have been made available by the Central Government in the NCT of Delhi and with the addition of these beds, the current COVID beds allocated stand at about 4091 bed.

It has been stated that the complete breakup of the above-stated COVID beds should be indicated along with the details of ICU/ Non-ICU beds, and beds with/without oxygen, and with/without ventilator in the affidavit to be filed by the Centre on 22-04-2021.

Rahul Mehra, Senior Counsel, Central Government submitted that the number of COVID Positive Patients at present in comparison to last year are four times, therefore Central Government should allocate more beds in its hospitals and facilities for COVID patients.

Roli Khare, Director, Ministry of Health and Family Welfare stated that the Central Government has been endeavouring to make more beds available. Presently it has been stated that the Central Government hospitals are occupied by non-COVID patients in need of critical care.

Central Government should urgently look to allocate more beds among their hospitals for COVID patients.

 Bench directed the Central Government to look into the aspect of bed allocation for COVID patients keeping in view the prevailing circumstances and report in this regard on 22-04-2021.

Availability of Medical Oxygen in the NCT of Delhi

Bench stated that the situation is alarming as the availability of Oxygen has dropped dramatically in the Hospitals.

Dr Nipun Vinayak, Joint Secretary, Ministry of Health and Family Welfare explained that the Department for Promotion of Industries and Internal (DPIIT) has been looking into the aspect of diversion of Oxygen from industrial use for medical use in view of the urgent need for oxygen.

He added that apart from industries, all others have been directed not to use the Oxygen so that the same could be made available for the medical use in the country.

Mr Mehra further submitted that there is grave dearth of medical oxygen in Delhi’s Hospitals and requirement according to him is 700 MT of medical oxygen per day. Adding to this, he stated that there is non-compliance of the order passed this Court whereby, M/s INOX was required to honor its contract with the GNCTD and Delhi Hospital to supply oxygen to Delhi.

Bench – Analysis & Decision

Bench called upon the Central Government to issue appropriate orders in respect of the Steel and Petro-Chemical industries, so that a balance can be maintained between the needs of the people at large – who are suffering from COVID and are serious, and the needs of the industries.

Looking at the number of COVID positive patients all over the country, and the pattern which is emerging with regard to the spread of the viral infection and the severity with which it is impacting people in different States and regions — Central Government is directed to review the allocation of oxygen on a dynamic basis.

Oxygen supply in some major hospitals has been informed to last only for 4-8 hours and since the need for oxygen is now, there should be no delay causing the loss of precious lives.

Central Government to make available oxygen to hospitals which are running out of their supplies, lest there is grave loss of life suffered by patients being treated thereat.

Notice of Contempt to be issued to M/s INOX for non-compliance of Court’s order and the Managing Director/Owner of M/s INOX to personally remain present.

Court is informed that the equipment for setting up RT-PCR test labs are imported, and medical equipment/ machines for which import orders have been placed, are being dealt with routinely at Customs Ports, hence it is essential that all such medical machines/ equipment’s, medicines, etc. which are imported should be handled and cleared at top priority by the Customs.

ICMR to give top priority for such clearances so that the RT – PCR Labs could be set up or expanded without any delay.

Central Government, and the ICMR, to review the form in which the information is required to be uploaded by the testing agencies, so as to reduce their burden and wastage of time, as this appears to be acting as a bottleneck in the matter of preparation of reports.

Adding more to the above directions, Bench directed the Central Government and its agencies to issue necessary directions to all the licensee and the Government should undertake to check on a regular basis to unearth all such cases of hoarding which is leading to scarcity of drugs in the market for the needy patients. Strict penal action should be taken against those indulging in such practices.

 Review the distribution of Remedesivir — Essential to maximise the efficient use of the said Drug

Central Government should dynamically review the distribution of Remedesivir in the States and Union Territories on a daily basis, on the basis of the need, assessed on the basis of the serious active Covid patients, who need to be administered the said Drug.

Centre should immediately reach out to the manufacturers/patent holders/licensees so as to forthwith ramp up the production capacities of all the medications essential for COVID treatment.

Manufacturers should be encouraged to ramp up their production on a war footing. Voluntary licenses to other entities should also be granted.

 As per reports, 44 lakhs vaccines have been wasted out of the 10 crores vaccines allocated to different States due to the restriction of age or category of people who are entitled to take the vaccine.

Wastage of even a single dose of vaccine, when the same is proving to be life–saving, would be a criminal waste.

Bench has been informed that each vial has 10 doses and once it is opened, it has to b either fully consumed or the remainder goes waste.

To the above, Court concluded this decision stating that:

It should be possible for the Government(s) to devise ways and means so as to register volunteers who may be below the age group of 45 years, and above the age of 18 years – who could be called upon to take the residual doses of vaccine, in case, there are doses left unutilised after, say, 05.00 P.M on each day. That would ensure that all the doses are fully utilised, and not wasted.

 Matter to be listed on 22-04-2021. [Rakesh Malhotra v. GNCTD,  2021 SCC OnLine Del 1811, decided on 20-04-2021]


Advocates before the Court:

For the Petitioner: In Person

For the Respondents: Mr Rahul Mehra, Sr. Advocate with Mr Satyakam, ASC, and Mr Chaitanya Gosain and, Advocate for GNCTD.

Mr Chetan Sharma, ASG with Ms Monika Arora, CGSC and Mr Shriram Tiwary, Advocate for R-3

Case BriefsCOVID 19High Courts

 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:

  1. What is the ambit of the power to issue guidelines under the provisions of Epidemic Diseases (Amendment) Act and DMA?
  2. 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?
  3. 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

Case BriefsCOVID 19Supreme Court

Supreme Court: In an important verdict concerning the Small Scale Industries, particularly the MSMEs, facing the financial strain due to the Corona Virus Pandemic, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah*, JJ has held that there shall not be any charge of interest on interest/compound interest/penal interest from any of the borrowers who availed RBI’s loan moratorium scheme for the period between March 1, 2020 till August 31, 2020 during the COVID-19 lockdown.

The Court held that whatever the amount is recovered by way of interest on interest/compound interest/penal interest for the period during the moratorium, the same shall be refunded and be adjusted/given credit in the next instalment of the loan account.

The Court, however, refused to extend the moratorium period and also refused to grant the relief of total waiver of interest. 

Background

The Court was hearing a batch of petitions challenging the Covid-19 Regulatory Package notified by the RBI vide notification dated 27.03.2020 seeking total waiver of interest being charged on the loan amount during the moratorium period and also further extension of the moratorium period. It was also prayed before the Court that the relief packages which are offered by the UOI/RBI/Bankers/Lenders were not sufficient and some better and/or more reliefs should be offered.

However, on 23.10.2020 , the Central Government came out with a policy decision by which it is decided not to charge the interest on interest on the loans up to Rs. 2 crores.  However, such relief was restricted to these 8 categories.

It was Central Government’s case that if the Government were to consider waiver of interest on all the loans and advances to all classes and categories of borrowers corresponding to the six-month period for which the moratorium was made available under the relevant RBI circulars, the estimated amount is more than Rs. 6 lakh crores. “If the banks were to bear this burden, it would necessarily wipe out a substantial and a major part of their net worth, rendering most of the banks unviable and raising a very serious question mark over their very survival.” This was one of the main reasons why waiver of interest   was   not   even   contemplated and only payment of instalments was deferred.

After careful consideration and weighing all possible options, the Central Government decided to continue the tradition of handholding the small borrowers and, therefore, granted the relief of waiver of compound interest during the moratorium period, limited to the most vulnerable categories of borrowers.

Ruling 

Total Waiver of interest during moratorium period

The bankers/lenders have to pay the interest to the depositors and their liability to pay the interest on the deposits continue even during the moratorium period. They also have to bear the administrative expenses. Continue payment of interest to depositors is not only one of the most essential banking activities but it shall be a huge responsibility owed by the banks to crores and crores of small depositors, pensioners etc. surviving on the interest from their deposits. There may be several welfare funds schemes, category specific and sector specific which might be surviving and are implemented on the strength of the interest generated from their deposits. All such welfare funds would depend on the income generated from their deposits for the survival of their members.

“Therefore, to grant such a relief of total waiver of interest during the moratorium period would have a far-reaching financial implication in the economy of the country as well as the lenders/banks.”

Hence, when a conscious decision has been taken not to waive the interest during the moratorium period and a policy decision has been taken to give relief to the borrowers by deferring the payment of installments and so many other reliefs are offered by the RBI and thereafter by the bankers independently considering the Report submitted by Kamath Committee consisting of experts, the interference of the court is not called for.

Insufficient Relief packages

No   mandamus   can   be   issued   to   grant   some   more reliefs/packages. The court cannot interfere with the economic policy decisions on the ground that either they are not sufficient or efficacious and/or some more reliefs should have been granted. The Government might have their own priorities and the Government has to spend in various fields and in the present case like health, medicine, providing food etc.

Economic decisions are required to be taken keeping the larger economic scenario in mind and as such the Central Government has already given various reliefs and by providing various reliefs, they have already expanded huge financial burden. Further, the pandemic has caused stress to large and small businesses and the individuals who have lost jobs and livelihoods. By and large, everybody has suffered due to lockdown due to Covid-19 pandemic.

“No State or country can have unlimited resources to spend on any of its projects. That is why it only announces the financial reliefs/packages to the extent it is feasible.”

Extension of moratorium period

Extension of moratorium period is a policy decision.  Even otherwise, almost five months were available to eligible borrowers when circular dated 6.8.2020 was notified providing for a separate resolution mechanism for Covid19 related stressed assets.  Therefore, sufficient time was given to invoke the resolution mechanism.

Restriction of not charging interest on interest with respect to the loans up to Rs. 2 crores only for a few categories

In absence of any justification shown by the Government to restrict the relief of not charging interest on interest with respect to the loans up to Rs. 2 crores only and that too restricted to the aforesaid categories, the Court found such decision to be irrational.

It was also noted that the scheme dated 23.10.2020 granting relief/benefit of waiver of compound interest/interest on interest contains eligibility criteria and it provides that any borrower whose aggregate of all facilities with lending institution is more than Rs. 2 crores (sanctioned limit or outstanding amount) will not be eligible for ex-gratia payment under the said scheme.  Therefore, if the total exposure of the loan at the grant of the sanction is more than Rs. 2 crores, the borrower will be ineligible irrespective of the actual outstanding.

Giving an example, the Court explained

“if the borrower has been sanctioned a loan of Rs. 5 crores and has availed of the same, even though he might have repaid substantially bringing down the principal amount of less than Rs. 2 crores as on 29.02.2020, but because of the sanction of the loan amount of more than Rs. 2 crores, he will be ineligible. It also further provides that the outstanding amount should not be exceeded to Rs. 2 crores and for this purpose aggregate of all facilities with the lending institution will be reckoned.   Therefore, if a borrower, for example, MSME Category has availed and has outstanding of business loan of Rs. 1.99 crores and also has dues of its credit card of Rs. 1.10 lakhs, thereby making the aggregate to Rs. 2.10 crores, it stands ineligible. Therefore, the aforesaid conditions would be arbitrary and discriminatory.”

Further, the compound interest/interest on interest shall be chargeable on deliberate/willful default by the borrower to pay the installments due and payable. Therefore, it is in the nature of a penal interest.

By notification dated 27.03.2020, the Government has provided the deferment of the installments due and payable during the moratorium period.

“Once the payment of installment is deferred as per circular dated 27.03.2020, non-payment of the installment during the moratorium period cannot be said to be willful and therefore there is no justification to charge the interest on interest/compound interest/penal interest for the period during the moratorium.”

Therefore, there shall not be any charge of interest on interest/compound interest/penal interest for the period during the moratorium from any of the borrowers and whatever the amount is recovered by way of interest on interest/compound interest/penal interest for the period during the moratorium, the same shall be refunded and to be adjusted/given credit in the next instalment of the loan account.

[Small Scale Industries Manufacturers Association v. Union of India, 2021 SCC OnLine SC 246, decided on 23.03.2021]


*Judgment by: Justice MR Shah

Appearances before the Court by:

For Petitioners: Senior Advocate Ravindra Shrivastava, Dr. Abhishek Manu Singhvi, Kapil Sibbal

For Union of India: Solicitor General of India Tushar Mehta

For RBI: Senior Advocate V. Giri

For Indian Bank Association: Senior Advocate Harish Salve

For SBI: Senior Advocate Mukul Rohatgi

ALSO READ

COVID-19| Seeking waiver of interest on interest for loan during the moratorium period? SC asks Govt to implement decision to forego compound interest on these 8 categories

Case BriefsSupreme Court

Supreme Court: As the country heads towards returning to normalcy, the 3-judge bench of SA Bobde, CJ and L. Nageswara Rao and S. Ravindra Bhat, JJ jas issued fresh guidelines in relation to the period of limitation for filing petitions/applications/suits/appeals/all other proceedings.

“Though, we have not seen the end of the pandemic, there is considerable improvement. The lockdown has been lifted and the country is returning to normalcy. Almost all the Courts and Tribunals are functioning either physically or by virtual mode.”

Due to the onset of COVID-19 pandemic, by an order dated 27.03.2020*, the Supreme Court had extended the period of limitation prescribed under the general law or special laws whether compoundable or not with effect from 15.03.2020 till further orders. The order dated 15.03.2020* was extended from time to time. The said decision was taken after taking note of the difficulties that might be faced by the litigants across the country in filing petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central or State).

Here are the fresh directions:

  1. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 14.03.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021.
  2. In cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15.03.2021. In the event the actual balance period of limitation remaining, with effect from 15.03.2021, is greater than 90 days, that longer period shall apply.
  3. The period from 15.03.2020 till 14.03.2021 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.
  4. The Government of India shall amend the guidelines for containment zones, to state. “Regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions, such as, time bound applications, including for legal purposes, and educational and job-related requirements.”

[IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION, 2021 SCC OnLine SC 193, order dated 08.03.2021]


*Ed. Note: The order erroneously mentions the order dated 23.03.2020 as the order dated 27.03.2020 and the order dated 15.03.2020. Read the following report on the order dated 23.03.2020 extending the limitation period for filing petitions/applications/suits/appeals/etc. 

Coronavirus (COVID-19)| SC extends limitation period for filing petitions/applications/suits/appeals, etc.

Case BriefsCOVID 19Supreme Court

Supreme Court: Concerned with the COVID-19 pandemic spreading like a wild fire despite Guidelines and SOPs in place, the 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has said that a strict and stern action should be taken against those who are violating the Guidelines and SOPs, whoever he may be and whatever position the violator is occupying.

On 27.11.2020, the Court took suo motu cognizance of the incident which happened in Rajkot, Gujarat on 26.11.2020 resulting in death of COVID patients in the COVIDHospital. The Court also took notice of earlier incidents of fire in Covid Hospitals.

Stressing upon the right to health being a fundamental right guaranteed under Article 21 of the Constitution of India which includes affordable treatment, the Court said that either more provisions are to be made by the State Government and the local administration or there shall be cap on the fees charged by the private hospitals, which can be in exercise of the powers under the Disaster Management Act.

“It cannot be disputed that for whatever reasons the treatment has become costlier and costlier and it is not affordable to the common people at all. Even if one survives from COVID-19, many times financially and economically he is finished.”

Asking States to rise to the occasion, the Court said that every State must act vigilantly and to work with the Centre harmoniously.

Further, people should understand their duty and follow rules very strictly. It is the duty of every citizen to perform their fundamental duties as guaranteed under the Constitution of India.

“By not following the Guidelines/SOPs issued by the State from time to time, such as, not wearing the masks, not keeping social distances, to participate in the gatherings and the celebrations without maintaining social distances, they are ultimately not damaging themselves but they cause damage to the others also. They cannot be permitted to play with the lives of the others and they cannot be permitted to infringe the rights of other citizens, like right to health guaranteed under Article 21 of the Constitution of India.”

Calling for strict implementation of the SOPs and the guidelines issued from time to time, the Court reiterated the following measures:

i) More and more police personnel shall be deployed at the places where there is likelihood of gathering by the people, such as, Food Courts, Eateries, Vegetable Markets (Wholesale or Retail), sabzi Mandies, bus stations, railway stations, street vendors, etc.

ii) As far as possible, unless must, no permission shall be granted by the local administration or the Collector/DSP for celebration/gathering even during the day hours and wherever the permissions are granted, the local administration/DSP/Collector/Police In-charge of the local police station shall ensure the strict 7 compliance of the Guidelines/SOPs. There should be a mechanism to check the number of people attending such function/gathering, such as, the particulars with respect to how many persons are going to attend the celebration/gathering, timings during which the celebration/gathering is to take place etc.

iii) There shall be more and more testing and to declare the correct facts and figures. One must be transparent in number of testing and declaring the facts and figures of the persons who are Corona Positive. Otherwise, the people will be misled and they will be under impression that everything is all right and they will become negligent.

iv) Whenever directions are issued under the Disaster Management Act directing the corporate hospitals/private hospitals to keep 50% or any other percentage free municipal beds, it must be strictly complied with and there shall be constant vigilance and supervision.

v) There shall be free helpline numbers to redress the grievances of common man, when there is noncompliance of the directions by the private hospitals/corporate hospitals.

vi) Curfew on weekends/night be considered by States where it is not in place.

vii) In a micro containment zone or in an area where number of cases are on higher side, to cut the chain, they should be sealed and there should be complete lockdown so far as such areas are concerned. Such containment areas need to be sealed for few days except essential services. The same is required to break the chain of virus spread.

viii) Any decision to impose curfew and/or lockdown must be announced long in advance so that the people may know and make provisions for their livelihood, like ration etc.

ix) Another issue is a fatigue of front row health care officers, such as, Doctors, Nurses as well as workers. They are already exhausted physically and mentally due to tireless work for eight months. Some mechanism may be required to give them intermittent rest.

On the issue relating to gatherings organised by Political parties in light on upcoming elections in various States, the Court directed all the States / Union Territories to issue necessary directions to ensure compliance of guidelines for conduct of General Elections/Bye-Elections during Covid-19

The Court said that guidelines although were issued by General Election/Bye Election, can be implemented by different States with suitable modifications with reference to Elections of other organisations to ensure safety of people in general from Covid-19.

[IN RE: THE PROPER TREATMENT OF COVID 19 PATIENTS AND DIGNIFIED HANDLING OF DEAD BODIES IN THE HOSPITALS ETC., 2020 SCC OnLine SC 1036, order dated 18.12.2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has directed that no State or Union Territory is required to paste posters outside the residence of COVID-19 positive persons, as of now. The State Governments and Union Territories can do so only when any direction is issued by the competent authority under the Disaster Management Act, 2005.

The direction came after a PIL was filed before the Court seeking an end to the practice of authorities affixing posters outside residences of Covid-19 positive persons who are under home isolation. The Petition further prayed that directions be issued to stop publishing the names of COVID-19 positive persons by the official of the Health Department in the States and Union Territories and also to stop freely circulating their names in welfare associations of colony and apartment complex which are serious violation of fundamental rights, right to privacy and right to live with dignity.

However, Solicitor General Tushar Mehta brought the Court’s attention to the guidelines dated 02.07.2020 and submitted that in the said guidelines which have been issued by the Government, Ministry of Health and Family Welfare for home isolation, there are no guidelines for pasting of posters outside the residence of COVID-19 positive persons. The letter issued by the Department of Family Welfare dated 19.11.2020 to Additional Chief Secretaries/Principal Secretaries/ Secretaries(Health) All States/UTs that the Government of India, Department of Health and Family Welfare, Ministry of Health and Family Welfare Guidelines also does not contain any instruction or guidance regarding affixing posters or other signage outside the residences of those found COVID-19 Positive.

“… neither any such direction has been issued by the Government of India nor it is obligatory to any State or Union Territory to paste the posters outside the residences of COVID-19 positive persons.”

[Kush Kalra v. Union of India, 2020 SCC OnLine SC 1017, decided on 09.12.2020]


*Justice Ashok Bhushan has penned this judgment

For petitioner: Advocate Chinmoy Pradip Sharma

For Respondent: Solicitor General Tushar Mehta

For NCT OF Delhi: Advocate Chirag M. Shroff

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of L. Nageswara Rao, Hemant Gupta and Ajay Rastogi, JJ has issued directions to ensure education of children in Child Care Institutions which has suffered due to the COVID-19 pandemic.

Amicus Curiae Gaurav Agrawal suggested the Court that infrastructure available in the Child Care Institutions for providing education to children needs to be assessed. On the basis of the assessment of the infrastructure, Child Welfare Committees and the Juvenile Justice Boards through the District Child Protection Units shall inform the State Governments about the deficiencies in the infrastructure, stationary/books etc. It is necessary to ensure that extra classes should be held for children residing in Child Care institutions to make them holistically prepared to take the examinations in March-April, 2021.

Amicus Curiae also highlighted that State of Telangana is providing extra classes for children in Child Care Institutions. The other states should also follow the lead of the State of Telangana and ensure that such extra classes be provided for students/ the children restored to the families due to coronavirus pandemic.

“2,27,518 children were in the Child Care Institutions before the pandemic and 1,48,788 children have been restored to their families/guardians and other foster care homes, as a result of the pandemic. Educational needs of those children who have been handed over to their parents or guardians should be assessed. They might not have attended schools due to various reasons including the financial distress of the parents.”

Further, State of Tripura is following a practice of providing financial aid of Rs.2160 per month to the parents or guardians of the children who have been restored from the Child Care Institutions.

Taking note of the aforementioned submissions of the amicus curiae, the Court issued the following directions

  1. State governments to provide the necessary infrastructure, stationary, books, printers along with the other equipment that is necessary for children to quantitatively attend online classes on the basis of the recommendation made by the District Child Protection Units, within 30 days from the date of the order.
  2. State Government shall also ensure that the required number of tutors are made available for teaching the children in various Child Care Institutions. Extra classes, if necessary, should also be taken for the children to help them in preparing for the final examinations to be held next year.
  3. District Child Protection Units shall inform the District Legal Service Authorities about the progress made in the infrastructure being provided to the Child Care Institutions and the functioning of online classes periodically i.e. once in a month.
  4. District Child Protection Units to make an assessment of the children who are restored to their families or guardians or foster homes during the lockdown by taking the assistance of other statutory bodies like the Child Welfare Committees and Juvenile Justice Boards.
  5. District Child Protection Units to enquire about the financial position of the parents or guardians of the children. If it is found that the children are not being sent to school in view of the financial disability of their parents or guardians, the District Child Protection Units are directed to recommend to State governments to grant financial aid to the parents or guardians concerned. On such recommendation being made by the District Child Protection Units, the concerned authorities of the State governments are directed to release an amount of Rs.2000/- per month for each child, to the parents or guardians of the children in distress, which shall be used for the purpose of the education of the children.
  6. District Care Protection Units to ascertain the number of children who are restored to their families due to lockdown in a particular geographical locality and organize a guide or a teacher for each group of 25 children.

The Court will now hear the matter in February, 2021.

[IN RE: CONTAGION OF COVID 19 VIRUS IN CHILDREN PROTECTION HOMES, 2020 SCC OnLine SC 1026, order dated 15.12.2020]

Case BriefsSupreme Court

Supreme Court: In a breather to customers in the case relating to waiver of interest on loan during the moratorium period, the 3-judge bench of Ashok Bhushan*, R. Subhash Reddy and MR Shah, JJ has directed that all steps to implement the decision dated 23.10.2020 of the Government of India, Ministry of Finance be taken so that benefit to the eight categories contemplated in the affidavit can be extended.

The affidavit dated 23.10.2020, states that

“ (…) the decision taken by the Central Government for granting various reliefs for the COVID-19 pandemic for benefit of waiver of interest upto Rs.2 Crores in eight categories has been approved by the Union Cabinet in its meeting dated 21.10.2020 and Ministry of Finance has issued directions dated 23.10.2020 on the subject, which has been brought on record alongwith the affidavit.”

The eight categories are:

(i) MSME loans

(ii) Education loans

(iii) Housing loans

(iv) Consumer durable loans

(v) Credit card dues

(vi) Automobile loans

(vii) Personal loans to professionals

(viii) Consumption loans up

Solicitor General Tushar Mehta submitted before the Court that the Central Government is fully conscious of the difficulties faced by the various sectors and the stakeholders of various sectors and the Finance Ministry, after the outbreak of COVID-19, has taken several measures of reliefs dealing with the potential problems faced by several sectors and in several spheres of all financial worlds.

It was further highlighted that in pursuance of circular dated 23.10.2020,

“… the State Bank of India has informed that as on 13.11.2020, as per provisional, unaudited information received so far from various lending institutions, such lending institutions have released ex-gratia amount of an aggregate exceeding Rs.4,300 Crores in over 13.12 Crore accounts of borrowers covered under the Scheme.”

The Court will continue to hear the matter on 02.12.2020.

[Gajendra Sharma v. Union of India, 2020 SCC OnLine SC 963, decided on 27.11.2020]


*Justice Ashok Bhushan has penned this judgment

For petitioner: Senior Advocate Rajiv Dutta

For RBI: Solicitor General Tushar Mehta, Senior Advocate V. Giri and Advocate Ramesh Babu M.R.

Case BriefsCOVID 19Supreme Court

Supreme Court: Refusing to interfere with the Delhi High Courts order staying Delhi Government’s decision to reserve 80% of ICU beds in private hospitals for COVID-19 patients, a vacation bench of Ashok Bhushan and B.R. Gavai, JJ has asked the Delhi High Court to hear the matter on 12.11.2020.

The order came after Additional Solicitor General Sanjay Jain submitted before the Court that there was an urgent requirement of hearing the matter since situation in Delhi regarding necessity of providing ICU beds to Covid-19 patients is increasing day by day.

Senior Advocate Maninder Singh, appearing for the Association of Healthcare Providers submitted that the matter was already listed before the Single Bench on 18.11.2020 and that he had no objection if the matter is taken up on any early date by the Division Bench. The LPA before the division bench was earlier listed on 27.11.2020.

The Court directed that it will be open for the parties to submit such pleadings and submissions before the Division Bench as may be advised.

[Government of NCT of Delhi v. Association of Healthcare Providers, Special Leave to Appeal (C) Nos. 13530-13531/2020, order dated 10.11.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan*, R. Subhash Reddy and MR Shah, JJ has asked the Central Government to consider and issue necessary directions in exercise of powers vested in it under the Disaster Management Act, 2005, regarding ban/Regulation on the usage of disinfection tunnels involving spraying or fumigation of chemical/organic disinfectants for the human beings. The Central Government has to issue such directions within a month.

The direction came in the case where the petitioner had sought ban on spraying of all kinds of disinfectants on human beings which is being done supposedly for protecting the human beings from the COVID-19. The petitioner highlighted that the Ultraviolet (UV Lamps) should not be used to disinfect the hands and other areas of the skin and that the Ministry of Health and Family Welfare, Government of India, has also not approved the use of any self-claimed organic or ayurvedic disinfectant for spraying or fumigation purposes nor approved any chemical disinfectants on human body but lot of organizations/public authorities are using chemical disinfectants for spraying and fumigation.

It was further submitted that

“there is no study anywhere in the world by any credible health agency which states that human disinfection tunnels are effective against Covid-19 virus.”

On the contrary, there are sufficient health advisories by the WHO, Union of India and other international agencies that tunnels are counter-productive and harmful for human health.

In this backdrop, the Court noticed that when the Government itself has issued advisory that use of disinfectant on human body is not recommended and it has been brought into its notice that despite the said advisory, large number of organizations, public authorities are using disinfectants on human body, it was necessary for it to issue necessary directions either to prevent such use or regulate such use as per requirement to protect the health of the people.

Though the Union and the States are taking all measures to contain the pandemic and all mitigating steps but,

“Some more actions were required to remove the cloud of uncertainty and to regulate the use even if it was to either prevent such use or regulate the use so that health of citizens is amply protected.”

On the submission by the Government that it is for the States/UTs to implement guidelines by the Ministry of Health and Family Welfare and role of the Central Government is limited to provide necessary guidelines and financial support, the Court said, that the provisions of the Act, 2005, confer certain more responsibilities and duties on the Central Government apart from issuance of guidelines and providing financial support. The COVID-19 Pandemic being a disaster within the meaning of Act, 2005, has to be dealt with sternly and effectively.

“In event, use of disinfectant on human body is to cause adverse effect on the health of the people, there has to be immediate remedial action and respondent No.1 cannot stop only by saying that such use is not recommended.”

[Gursimran Singh Narula v. Union of India,  2020 SCC OnLine SC 906, decided on 05.11.2020]


*Justice Ashok Bhushan has penned this judgment