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

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and Dr. DY Chandrachud and L. Nageswara Rao, JJ has made a slight modification in the guidelines issued by it on April 06, 2020 on functioning of courts through video conferencing amidst the COVID-19 pandemic.

The Court has ordered that the directions issued earlier need not be altered except sub-para (vii) of Paragraph 6 which shall be substituted with the following:

“The Video Conferencing in every High Court and within the jurisdiction of every High Court shall be conducted according to the Rules for that purpose framed by that High Court. The Rules will govern Video Conferencing in the High Court and in the district courts and shall cover appellate proceedings as well as trials.”

Earlier sub-para (vii) of Paragraph 6 of the order dated April 06, 2020 read as:

“Until appropriate rules are framed by the High Courts, video conferencing shall be mainly employed for hearing arguments whether at the trial stage or at the appellate stage. In no case shall evidence be recorded without the mutual consent of both the parties by video conferencing. If it is necessary to record evidence in a Court room the presiding officer shall ensure that appropriate distance is maintained between any two individuals in the Court.”

Noticing that several High Courts have framed their rules already, the Court directed that those High Courts that have not framed such Rules shall do so having regard to the circumstances prevailing in the State and

“Till such Rules are framed, the High Courts may adopt the model Video Conferencing Rules provided by the E-Committee, Supreme Court of India to all the Chief Justices of the High Court.”

Impressed with the functioning of virtual courts across the country amidst COVID-19 pandemic, the Court said,

“We must say the system of Video Conferencing has been extremely successful in providing access to justice.”

[IN RE GUIDELINES FOR COURT FUNCTIONING THROUGH VIDEO CONFERENCING DURING COVID 19 PANDEMIC, SMW (C) No(s). 5/2020, order dated 26.10.2020]


Read the guidelines dated April 06, 2020 on functioning of courts through video conferencing here

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashik Bhushan, R. Subhash Reddy, JJ has directed full refund of air tickets booked during lockdown period i.e. from 25th March, 2020 to 24th May, 2020 for travel during lockdown period. The order of the Court came after accepted Directorate General of Civil Aviation’s (DGCA) proposal of

To contain the pandemic situation of COVID¬19, lockdown was imposed by the Government of India, from 25th March 2020 to 14th April 2020 which was later extended upto 03rd May 2020.  A ban was also imposed on operation of all domestic and international flights. There was an issue of refund of air fare during the lockdown period, when domestic and international flights’ operation was suspended. The Ministry of Civil Aviation (MoCA), while acknowledging the unusual situation that has arisen due to the lockdown imposed, to contain further spread of COVID¬19 and its consequential effect on the air passengers and airlines, by examining the grievances received from various quarters, issued an advisory to all stake holders in civil aviation sector in the shape of Office Memorandum dated 16th April 2020.

The present writ petition was filed to declare the action on the part of the respondent-airlines, operating domestic as well as international flights in India, in not refunding the full amount collected for the tickets, due to the cancellation of flights in the wake of restrictions imposed by the Government of India to contain COVID-19 as arbitrary and in violation of Civil Aviation Requirements, issued by the Directorate General of Civil Aviation. A consequential relief was sought to direct the respondents to refund the full amount upon such cancellations.

The Court noticed that in ordinary course modalities and timelines for refund on cancellation of tickets are governed by, the Civil Aviation Requirements, i.e. CAR dated 22nd May 2008; 06th August 2010 as revised on 27th February 2019, and the said Requirements are issued by the competent authority in exercise of powers under the provisions of Aircrafts Act, 1934 and the Rules made thereunder.

It, however, said that

“… we cannot lose sight of the present situation prevailing in the country and across the globe, i.e. the effect of pandemic COVID-19.  It cannot be disputed that the civil aviation sector, which is one of the important sectors, is seriously affected in view of the ban imposed for operating flights. Added to the same, air passenger traffic has come down heavily and which is gradually being restored.  At this moment any strict enforcement action of the CARs would further restrict/reduce their operations and such enforcement action may further jeopardise the possibilities of generation of cash by airlines which can further adversely affect/delay the refund cycle. “

Strict enforcement of Civil Aviation Requirements at this moment may not yield any meaningful result for any stake holder.  Hence, in view of the suggestions and formulations arrived at in the meetings held by Union of India and DGCA, which are acceptable to the majority of stake holders, the Court directed that the same have to be implemented in letter and spirit since such formulations are workable solutions in these peculiar circumstances which are prevailing in the country.

DIRECTIONS ISSUED

  1. If a passenger has booked a ticket during the lockdown period (from 25th March, 2020 to 24th May, 2020) for travel during lockdown period and the airline has received payment for booking of air ticket for travel during the same period, for both domestic and international air travel and the refund is sought by the passenger against that booking being cancelled, the airline shall refund the full amount collected without any cancellation charges. The refund shall be made within a period of three weeks from the date of cancellation.
  2. If the tickets have been booked during the lockdown period through a travel agent for a travel within the lockdown period, in all such cases full refund shall be given by the airlines immediately. On such refund, the amount shall be passed on immediately by the agent to the passengers.
  3. Passengers who booked tickets at any period of time but for travel after 24th May, 2020 – refund of fares to the passengers covered under this category shall be governed by the provisions of Civil Aviation Requirements (CAR).
  4. Even for international travel, when the tickets have been booked on an Indian carrier and the booking is ex¬India, if the tickets have been booked during the lockdown period for travel within the lockdown period, immediate refund shall be made.
  5. If the tickets are booked for international travel on a foreign carrier and the booking is ex¬India during the lockdown period for travel within the lockdown period, full refund shall be given by the airlines and said amount shall be passed on immediately by the agent to the passengers, wherever such tickets are booked through agents. In all other cases airline shall refund the collected amount to the passenger within a period of three weeks.
  6.  In all other cases, the airlines shall make all endeavours to refund the collected amount to the passenger within 15 days from today. If on account of financial distress, any airline / airlines are not able to do so, they shall provide credit shell, equal to the amount   of   fare   collected,   in   the   name   of passenger when the booking is done either directly by the passenger or through travel agent so as to consume the same on or before 31st March, 2021.  It is open to the passenger either to utilize such credit etc. shell upto 31st  March, 2021 on any route of his choice or the passenger can transfer the credit shell to any person including the travel agent through whom he/she has booked the ticket and the airlines shall honour such a transfer.

The credit shell issued in the name of the passenger shall be transferable which can be utilize upto 31st  March, 2021 and the concerned airline shall honour such a transfer by devising a mechanism to facilitate such a transfer. It is also made clear that such credit shell can be utilized by the concerned agent through whom the ticket is booked, for third party use. It is also made clear that even in cases where credit shell is transferred to third party, same is to be utilized only through the agent who has booked the ticket at the first instance.

  1. In cases where passengers have purchased the ticket through an agent, and credit shell is issued in the name of passenger, such credit shell is to be utilized only through the agent who has booked the ticket. In cases where tickets are booked through agent, credit shell as issued in the name of the passenger which is not utilized by 31st March, 2021, refund of the fare collected shall be made to the same account from which account amount was received by the airline.
  2. In all cases where credit shell is issued there shall be an incentive to compensate the passenger from the date of cancellation upto 30th June, 2020 in which event the credit shell shall be enhanced by 0.5% of the face value (the amount of fare collected) for every month or part thereof between the date of cancellation and 30th June, 2020. Thereafter the value of the credit shell shall be enhanced by 0.75% of the face value per month upto 31st March, 2021.

[Pravasi Legal Cell v. Union of India, 2020 SCC OnLine SC 799, decided on 01.10.2020]

Case BriefsCOVID 19Supreme Court

“A worker’s right to life cannot be deemed contingent on the mercy of their employer or the State.”

Supreme Court: The 3-judge bench of Dr. DY Chandrachud. Indu Malhora and KM Joseph, JJ quashed the Notification dated July 20, 2020 issued by the Labour and Employment Department of State of Gujarat under Section 5 of the Factories Act to exempt all factories registered under the Act “from various provisions relating to weekly hours, daily hours, intervals for rest etc. for adult workers” under Sections 51, 54, 55 and 56 till October 19, 2020.

“This Court is cognizant that the State of Gujarat aimed to ameliorate the financial exigencies that were caused due to the pandemic and the subsequent lockdown. However, financial losses cannot be offset on the weary shoulders of the laboring worker, who provides the backbone of the economy.”

The Court, hence, directed that overtime wages shall be paid, in accordance with the provisions of Section 59 of the Factories Act to all eligible workers who have been working since the issuance of the notifications.


NOTIFICATION

On 17 April 2020, the Labour and Employment Department of the State of Gujarat issued a notification with the aim to provide “certain relaxations for industrial and commercial activities” from 20 April 2020 till 19 July 2020. On its lapse by the efflux of time, the State government issued another notification on 20 July 2020 . Similar in content, the new notification extended the exemption granted to factories from 20 July 2020 till 19 October 2020.


POWER UNDER SECTION 5 OF THE FACTORIES ACT, 1962 AND THE PRE-REQUISITE OF ‘PUBLIC EMERGENCY’

NOTE: Section 5 of the Factories Act provides that in a public emergency, the State Government can exempt any factory or class or description of factories from all or any of the provisions of the Act, except Section 67.

The Court noticed that the existence of a public emergency is a pre-requisite to the exercise of the power. Whether there exists a public emergency is not left to the subjective satisfaction of the state government. The absence of the expression “subjective satisfaction” in Section 5 is crucial.

“The existence of a public emergency must hence be demonstrated as an objective fact, when its existence is questioned in a challenge to the exercise of the power. Left to itself, the expression ‘public emergency’ may have a wide and, as we say in law, an elastic meaning.”

Under Section 5 a situation can qualify as a public emergency’, only if the following elements are satisfied:

  • there must exist a “grave emergency”;
  • the security of India or of any part of its territory must be “threatened” by such an emergency; and
  • the cause of the threat must be war, external aggression or internal disturbance.

It was, hence, noticed,

“The co-relationship between the cause and effect must exist. Implicitly therefore, the statutory provision incorporates the principle of proportionality.”


PRECEDENT ON ‘PUBLIC EMERGENCY’ AND ‘SECURITY OF THE STATE’

The power under Section 5 of the Factories Act can be exercised in a “public emergency”. The explanation states that to constitute a public emergency, there must be a grave emergency. The emergency must be of such a nature as to threaten the security of India or a part of its territory. The threat to the security of India or a part of the territory must be caused by war, external aggression or an internal disturbance. The expression ‘internal disturbance’ cannot be divorced from its context or be read in a manner divorced from the other two expressions which precede it. They are indicative of the gravity of the cause which threatens the security of India or a part of its territory. An internal disturbance must be of a similar gravity.

“… it is necessary to evaluate whether a situation of internal disturbance threatens the security of India, or a part of its territory to qualify as a ‘public emergency’. In the absence of any one or more of the constituent elements, the conditions requisite for the exercise of statutory power will not exist.”


IS COVID-19 A ‘PUBLIC EMERGENCY’IN TERMS OF SECTION 5 OF THE FACTORIES ACT, 1962?

“The brunt of the pandemic and of the lockdown has been borne by the working class and by the poorest of the poor. Bereft of social security, they have no fall back options.”

The Court noticed that global pandemic caused by COVID-19 is an unprecedented situation with which countries all over the world are grappling. In India, when the Central Government imposed a nationwide lockdown to take effective measures to contain the spread of COVID-19, there was a widespread migration of labour from the cities, where all avenues for work had closed. There was an unprecedented human migration, countless of the marginalized on foot, to rural areas in search of the bare necessities to sustain life. There has been a loss of incomes and livelihood.

“The respondent has in exercise of its powers under Section 5 of the Factories Act issued the impugned notifications purportedly to provide a fillip to industrial and commercial activities.”

The Court said that even if it accepted the argument of the State that the pandemic has resulted in an internal disturbance, it cannot be said that the economic slowdown created by the COVID-19 pandemic would qualify as an internal disturbance threatening the security of the state.

“The pandemic has put a severe burden on existing, particularly public health, infrastructure and has led to a sharp decline in economic activities. The Union Government has taken recourse to the provisions of the Disaster Management Act, 2005.12 However, it has not affected the security of India, or of a part of its territory in a manner that disturbs the peace and integrity of the country.”

The economic hardships caused by COVID–19 certainly pose unprecedented challenges to governance. However, such challenges are to be resolved by the State Governments within the domain of their functioning under the law, in coordination with the Central Government. Unless the threshold of an economic hardship is so extreme that it leads to disruption of public order and threatens the security of India or of a part of its territory, recourse cannot be taken to such emergency powers which are to be used sparingly under the law.

“Recourse can be taken to them only when the conditions requisite for a valid exercise of statutory power exist under Section 5. That is absent in the present case.”

It was further noticed that the impugned notifications do not serve any purpose, apart from reducing the overhead costs of all factories in the State, without regard to the nature of their manufactured products. It would be fathomable, and within the realm of reasonable possibility during a pandemic, if the factories producing medical equipment such as life-saving drugs, personal protective equipment or sanitisers, would be exempted by way of Section 65(2) of the Factories Act, while justly compensating the workers for supplying their valuable labour in a time of urgent need.

“A blanket notification of exemption to all factories, irrespective of the manufactured product, while denying overtime to the workers, is indicative of the intention to capitalize on the pandemic to force an already worn-down class of society, into the chains of servitude.”


SOCIAL AND ECONOMIC VALUE OF ‘OVERTIME’

The Indian Constitution is born from a transformative vision which aims to achieve social and economic democracy. Labour welfare is an integral element of that vision.The need for protecting labour welfare on one hand and combating a public health crisis occasioned by the pandemic on the other may require careful balances. But these balances must accord with the rule of law. A statutory provision which conditions the grant of an exemption on stipulated conditions must be scrupulously observed.

“It cannot be interpreted to provide a free reign for the State to eliminate provisions promoting dignity and equity in the workplace in the face of novel challenges to the state administration, unless they bear an immediate nexus to ensuring the security of the State against the gravest of threats.”

The principle of paying for overtime work at double the rate of wage is a bulwark against the severe inequity that may otherwise pervade a relationship between workers and the management.


CONSTITUTIONAL VISION OF SOCIAL AND ECONOMIC DEMOCRACY

“Ideas of ‘freedom’ and ‘liberty’ in the Fundamental Rights recognized by the Constitution are but hollow aspirations if the aspiration for a dignified life can be thwarted by the immensity of economic coercion.”

The Factories Act is an integral element of the vision of state policy which seeks to uphold Articles 38,22 39,23,24 and 25 of the Constitution. It does so by attempting to neutralize the excesses in the skewed power dynamics between the managements of factories and their workmen by ensuring decent working conditions, dignity at work and a living wage.

The Court said that the Constitution allows for economic experiments. Judicial review is justifiably held off in matters of policy, particularly economic policy. But the Directive Principles of State Policy cannot be reduced to oblivion by a sleight of interpretation.

“To a worker who has faced the brunt of the pandemic and is currently laboring in a workplace without the luxury of physical distancing, economic dignity based on the rights available under the statute is the least that this Court can ensure them.”

The notifications, in denying humane working conditions and overtime wages provided by law, are an affront to the workers’ right to life and right against forced labour that are secured by Articles 21 and 23 of the Constitution.


CONCLUSION

The Court quashed the Notifications and said that Section 5 of the Factories Act could not have been invoked to issue a blanket notification that exempted all factories from complying with humane working conditions and adequate compensation for overtime, as a response to a pandemic that did not result in an ‘internal disturbance’ of a nature that posed a ‘grave emergency’ whereby the security of India is threatened. In any event, no factory/ classes of factories could have been exempted from compliance with provisions of the Factories Act, unless an ‘internal disturbance’ causes a grave emergency that threatens the security of the state, so as to constitute a ‘public emergency’ within the meaning of Section 5 of the Factories Act.

The notifications in question legitimize the subjection of workers to onerous working conditions at a time when their feeble bargaining power stands whittled by the pandemic.

“Clothed with exceptional powers under Section 5, the state cannot permit workers to be exploited in a manner that renders the hard-won protections of the Factories Act, 1948 illusory and the constitutional promise of social and economic democracy into paper-tigers. It is ironical that this result should ensue at a time when the state must ensure their welfare.”

[Gujarat Mazdoor Sabha v. State of Gujarat, 2020 SCC OnLine SC 798, decided on 01.10.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has dismissed an appeal against the Allahabad High Court order refusing to interfere in the matter relating to the regulation of fees structure in Universities and Central Institutions

The plea filed by a law student pursuing LLM at Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur seeking issuance of directions to the Ministry of Education and University Grant Commission for framing guidelines to regulate the fees structure considering the lack of unanimity in structuring fees resulting into institutions charging full fees even for online classes.

The petition states,

“the tuition fee which will be charged by the institution amid online semester is not arbitrary but the other miscellaneous fee charged is indeed arbitrary.”

The petition highlighted that IIT Kharagpur issued the official notification to its students for starting the online semester tentatively from the last week of August and uploaded the full fees for its students in their institute’s login id and had instructed it to be paid before 27th July 2020. The impugned notification demands all the requisite fees charged against all other facilities which are provided viz. electricity, computer, library, Wi-Fi/ internet, laboratory, mess etc which are in no manner going to be utilized by the student during this period.

The key points highlighted by the petitioner in the petition were:

  • the action of the institution by charging more fees without service will be against the principle of rule of law. Every State Action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being.
  • not providing any substantial guidelines will make the fee issues being unaddressed, resulting in charging more fees than expected, thereby leading to de-registration of students on non-payment of fees.
  • parents should not be made to pay for the services which have not been rendered by the schools. All schools, irrespective of whether they offered online classes during lockdown period or not, are only entitled to collect the tuition fee.
  • the salary of teaching and non-teaching staff should be paid even during the lockdown. The guidelines to be issued must be in consonance and proportionate with the salary to be paid to teaching staff and non-teaching staff.

The Supreme Court, however, refused to interfere in the matter and dismissed the SLP.

[Saransh Chaturvedi v. Union of India, special leave to appeal (c) no(s).10722/2020, order dated 25.09.2020]

Case BriefsSupreme Court

Supreme Court: The 3-judge Bench of SA Bobde, CJ and AS Bopanna and S. Ramasubramanian, JJ has ordered a revised schedule for appointment of judicial officers in the State of West Bengal for the year 2020. For the conduct of Madhya Pradesh HJS (District Judge – Entry Level) (Direct Recuitment from Bar) Examination 2020 , the Court has asked the Examination Committee of the Madhya Pradesh High Court to review the situation once in a month and take a decision to conduct the above examination.

High Court of Calcutta

The High Court of Calcutta has approached the Court seeking a modification of the timeline fixed by this Court in Malik Mazhar Sultan vs. U.P. Public Service Commission, (2008) 17 SCC 703 for filling up of vacancies of judicial officers for the year 2020. As per the Malik Mazhar case, the schedule is to commence with the notification of the number of vacancies being issued by the 31st March every year and the whole process coming to an end with the issuance of appointment letters by 30th September indicating the last date of joining as 31st October, 2020.

Admittedly, even the first step namely that of notifying the vacancies, has not been taken due to the announcement of lock down by 24.03.2020.

Therefore, the Court ordered a revised schedule for appointment of judicial officers in the State of West Bengal for the year 2020 as follows:

High Court of Madhya Pradesh

High Court of Madhya Pradesh approached the Court seeking deferment of MPHJS (District Judge – Entry Level) (Direct Recuitment from Bar) Examination 2020 till the Examination Committee finds it suitable to conduct the examination. The notification for recruitment was published on 16.01.2020 and preliminary examination was fixed to be held on 16.03.2020. However, the examination got postponed due to the current Pandemic. On 24.08.2020, a new notification was issued fixing the date of preliminary examination as 30.09.2020. But due to the increase in the number of persons affected by Covid-19, a request was received from the MP High Court Bar Association on 29.08.2020 seeking postponement of the examination.

A total of 3113 candidates are likely to appear for the examination and out of them 1942 candidates belong to other States. The examinations are to be conducted at Bhopal, Indore, Gwalior and Jabalpur.

During the period from 25.03.2020 to 08.08.2020, 8 judicial officers, 52 judicial employees, and 46 Advocates tested positive for Corona. Therefore, the Court directed the Examination Committee of the Madhya Pradesh High Court to review the situation once in a month and take a decision to conduct the above examination. The first of such review shall be conducted in the first week of November, 2020.

The Court said that the the High Court may endeavour to hold the above examination as soon as the situation becomes conducive and the time-schedule shall stand extended accordingly.

[Malik Mazhar Sultan v. U.P. Public Service Commission,  2020 SCC OnLine SC 764, order dated 22.09.2020]

COVID 19Hot Off The PressNews

The Supreme Court Registry has released a detailed User Guide for limited physical hearings.  The ‘How to’ User guide answers the ‘How tos’ on

  1. e-Nomination of Counsel/Clerk for Physical hearing
  2. e-Application for Special Hearing Entry Pass
  3. e- Submission of Self-declaration Form

Some Key Points from the User Guide 

For e-Nomination of Counsel/Clerk for Physical hearing

  • AOR can nominate

1. Senior Counsel
2. Advocate-on-record (Other than the user)
3. Appearing counsel (Any other advocate otherwise eligible)
4. Party to the case represented by concerned AOR
5. Registered Clerk of the concerned AOR or nominee.

Total number of AORs appearing in the selected case will be displayed on the top of screen. The working capacity of the Court Room as per standard social distancing norms would also be on display.

  • How will the Limit be calculated: Limit per AOR is Calculated as per total number of AOR in a given case qua the working capacity of given Court Room.  If Limit per AOR is 0 in that case AOR can replace himself/herself with Senior Counsel or Appearing Counsel or Another AOR, as may be the case. If Limit per AOR is 2 in such case besides such AOR he or she can permit any two or combination of Senior Counsel or Appearing Counsel or Another AORs.
  • Entry of registered clerks is permitted to assist AOR or counsel for supplying physical material, as may be required, to argue a case. However, registered clerks
    are not permitted to enter inside the Court Room. Therefore, registered clerks are not counted as attendee inside the Court Room however his entry is permitted up
    to the Court Room. Therefore, Registered Clerk is not counted in the Limit of persons to be nominated by AOR in a given case.
  • If in a given case only AOR is permitted and such AOR replaces and nominates counsel in his place, in such event AOR will not be permitted inside the Court Room for that item number listed before the Court. In the Figure 6 name of AOR shall be at serial No. 1 by default. When AOR desires to replace himself/ herself, he or she can delete his/her entry and make fresh entry with appropriate replacement.
  • Mobile Number is mandatory field for nominating any person for physical hearing. On the basis of mobile number entry pass mechanism is designed, therefore, ensure that correct mobile number is entered, and it is verified before finally submitting nomination to the Registry.
  • On the day a given case is listed before the Court, nominated entries can be edited or changed till 09.00 am.

For e-Application for Special Hearing Entry Pass

  • AOR or Appearing Counsel or Arguing Counsel or Registered Clerk shall click on Special hearing entry pass link available on the official website Supreme Court of India.
  • Person nominated for special hearing and physical appearance before the Supreme Court of India shall enter his mobile number. If his number is registered by concerned AOR he shall receive OTP. If OTP is not received the concerned may contact respective AOR.
  • Photo ID uploaded while generating entry pass will be physically verified while permitting entry Photo ID is required for identification of the nominated person as Advocate or registered Clerk, as may be the case.
  • If on a particular day, appearance is to be marked in more than one case, multiple passes are required to be generated for that day. For each item number listed before the Court, a separate pass is required. Accordingly, one has to check schedule for the day and generate all passes listed for that day before the various Courts.
  • Before physically entering/ visiting the Supreme Court premises, the entrants have to mandatorily sign self-declaration form about fitness and good health ruling out possibility of self-infection

For e- Submission of Self-declaration Form

Any person or Advocate seeking to enter / visit the premises of the Supreme Court by generating Special Hearing Entry Pass, is mandatorily required to Sign in Selfdeclaration form. Self-declaration is to be signed in by entering OTP sent on registered mobile number only on the day of visit.

To download the user manual, click here.


Also read

SOP for limited physical hearings amidst COVIS-19 pandemic

COVID 19Hot Off The PressNews

After a 7-judge Committee of Justices NV Ramana, Arun Mishra, Rohington Nariman, U U Lalit, A M Khanwilkar, DY Chandrachud and L N Rao recommended re-commencing the physical hearings in some Courts, Chief Justice of India Justice SA Bobde has given the following directions for limited physical hearings amidst COVIS-19 pandemic:

1. On an experimental basis, and as a pilot scheme, physical hearing of matters may initially commence in three Court-rooms; eventually, number of matters or the number of Court-rooms may be increased or reduced, as the situation may warrant or permit;

2. Despite consent by the Advocates/Parties-in-Person, only such number of Counsels/parties may be permitted to appear during physical hearing inside Courtrooms, so that the total number does not exceed the working capacity of the Court(s) as determined considering the physical distancing norms;

3. If in a matter the number of parties is more, then one AOR and one Arguing Counsel per party will be allowed entry; one registered Clerk per party, as may be chosen by the AOR, shall be allowed entry to carry paper-books/journals etc. of the Counsels upto the Court-rooms;

4. Entry into the High Security Zone through proximity cards/long term passes shall be kept suspended, till further orders; entry of counsels/parties or such other stakeholders to appear for such limited physical hearing will be through daily “Special hearing passes” which will be issued by the Registry, on the basis of authorization by the concerned Advocate on Record.

5. Multiple sets of one chair and table are being placed inside the Court Rooms, in the areas demarcated for Advocates/Parties-in-Person, and it shall be incumbent upon the users to maintain minimum prescribed physical distancing norms between each set, which should not be removed from their positions;

6. Advocates/Parties-in-Person/Clerks or other stakeholders, who have been issued Special Hearing Passes, upon completion of necessary formalities, online or otherwise as may be notified in due time, shall enter the High Security Zone through the designated Gate, after subjecting themselves to the thermal and such other scanning devices as may be installed for detecting body temperature, infection status, etc.

7. On entering the High Security Zone, Advocates/Parties-in-Person would proceed to the staging areas/vacant Court-rooms as may be designated, and wait for their turn to enter respective Court Rooms where physical hearing of their respective case(s) may be scheduled, and they would proceed only through the movement corridors created and demarcated for the purpose;

8. At the staging/waiting area(s), concerned volunteers may also guide the Advocates/Parties-in-Person further, as and when their turn comes for entering the designated Court Room for hearing;

9. The entry into and exit from each Court Room shall be by separate doors; entrants into the Court Rooms are advised to use the sanitization devices for sanitizing their hands and also the papers and other items/articles, that they may seek to carry into the Court Rooms with them;

10. It may be noted that wearing of mask, frequent use of hand sanitizer and maintaining physical distancing norms is mandatory for all entrants into the Supreme Court premises, including the Court-rooms;

11. On completion of hearing of their respective case, the Advocates/Parties-in-Person/Clerks, etc. shall move out of the High Security Zone through the movement corridor and exit from the designated gates;

12. Advocates/Parties-in-Person having more than one case for physical hearing in the Court Rooms shall be issued separate Special Hearing Pass for each case and after hearing of one case is complete, they may wait in the designated staging/waiting area(s) for the purpose for appearing for the next hearing(s);

13. In order to facilitate video/tele-conferencing for the Advocates/Parties-in-Person, a dedicated VC Facilitation Centre is located in Block ‘C’, Ground Floor, Additional Building Complex, Supreme Court of India, which can be accessed through Gate No.1 of that Complex.


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COVID 19Hot Off The PressNews

After the All India Students Association has moved a letter petition on behalf of over 800 students earlier this month, a writ petition has been filed seeking suo moto congnizance of Supreme Court against the direction of CBSE to conduct the compartment examination amidst COVID-19 crisis.

The petition highlights that as per the CBSE Class X and XII results declared last month, around 150198 Class X students and around 87651 Class XII students were placed in the category of compartment full subject. When approached the Supreme Court, the students were asked to make representation before CBSE and upon doing so, CBSE, on August 6, 2020, without taking account of the present health crisis, provided for conduct of compartment exams.

Terming the said decision of CBSE to be in sheer violation of right to health which is part of right to life under Article 21 of the Constitution of India, the petition submits:

  • the conduct of compartment examination will expose the examinees to a great risk. The conduct of offline exam will entail students to travel from one place to another which will further involve the risk of shared accommodation, use of public transport, etc. The petition states that the conduct of examination will also increase the risk of the parents, teachers, staff members, etc being exposed to the virus.
  • the conduct of online exam will be against the interest of students who do not have proper access to internet/laptops/personal computers.
  • the decision of the CBSE is itself flawed as it is against the MHA Unlock III guideline dated 29.07.2020, which provides that the schools, colleges and educational institutions will remain closed.
  • many states including Bihar, Telangana and Manipur have cancelled their state board examination, in view of COVID 19. It is considering the exponential growth in the number of COVID-19 cases.
  • Ramesh Pokhriyal, Minister of Higher Education has stated that yet there is no date fixed for reopening schools and the safety of the students is a primary concern.

“When there is no deadline for opening of schools, how can the students be then expected to appear for compartment examination in the current situation.”

  • On 12.08.2020, C.B.S.E. issued a circular providing for the filing of the examination form for compartment examination by 20.08.2020 extended upto 22.08.2020 (with late fees) and that the compartment examination are proposed to be conducted in September. However, it did not specify any particular date, schedule or mode of conduction of the said examination.
  • many colleges are about to close admissions and some have already announced their admission closure date, which is adversely affecting the career of lacs of students, who will be deprived entrance into Universities/Colleges/Institutions, where they are eligible to apply for admission.

“… if an alternative mechanism is not derived, many students will lose an academic year.”

The Students have, hence, prayed that the universities/colleges/educational institutions, in which a student is eligible to apply, are directed to extend deadline for admission for academic year 2020-2021, until the result of the compartment examination is announced.

The students also sought for direction to direct the C.B.S.E. to provide for alternative mode of assessment for the students placed in the category compartment and to provide a specific date (at the earliest) for the completion of the assessment of compartment students so that their right to apply to various universities/colleges/educational institutions, who have already announced the admission closing date, is not affected.

Hot Off The PressNews

Supreme Court: The Court has refused allow mourning processions across the country during Muharram while observing that it will lead to chaos and the targeting of a particular community for spreading COVID-19. A Bench headed by Chief Justice SA Bobde said it will not pass orders that could risk the health of many people.

“You are asking for vague directions for the whole community in the country. Jagannath Puri case was one specific place where Rath was to go from point A to B. If it was one specific place we can assess the danger and pass orders,”

The Court said it will not pass orders that could risk the health of so many people. It, however, said that the petitioner may approach the High Court. The plea had sought a direction to take out Muharram processions by the Shia community.

(Source: ANI)

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has allowed the opening of three temples, i.e. one each in Byculla, Dadar (W) and Chembur in Mumbai on 22.08.2020 and 23.08.2020 for devotees to perform the rituals connected with ‘Paryushan’.

The Court, however made clear that

“this order is not intended to be used as a precedent by other persons to seek permission to hold any festivals/festivities which would involve, by their very nature, congregation of people, such as ‘Ganesh Festival’.”

Senior Advocate Dushyant Dave, appearing for the public charitable trust named Shri Parshwatilak Shwetamber Murtipujak Jain Trust, submitted that the Trust has given the following undertakings along with it’s prayer:

  • That the conditions mentioned in the “SOP on preventive measures to contain spread of COVID-10 in religious places/place of worship” dated 4 June 2020 by the Government of India, Ministry of Health and Family Welfare as public health measures will be strictly observed.
  • The entry of devotees will be restricted to 250 persons per day and only in the age group of 12 to 65, in the places of worship.
  • At any given point of time, no congregation of people will be allowed in temples and only up to 5 persons will be allowed to enter and remain within the inner part of the temples.
  • The Jain Community of Mumbai will be appraised of the order that may be passed by this Hon’ble Court and the above conditions through appropriate means of public communication.

On the other hand, Senior Advocate Dr. Abhishek Manu Singhvi, appearing for the State of Maharashtra, highlighted that the SOPs issued by the Government of India provides only the minimum threshold and that the different States are entitled to fix a higher threshold depending upon the fact situation.

“… the State Government had applied the restrictions uniformly to all communities and all religions and that nothing can be done to upset the balance.”

The Court was, however, of the view that a small reprieve can be granted to the petitioners, without making it as a precedent. It took note of the fact that the petitioners are not seeking to hold any festivities in congregation. The petitioners want by way of an interim measure opening of three temples, one each in Byculla, Dadar (W) and Chembur in Mumbai. They have undertaken to restrict the entry of devotees only to five persons at any given time subject to maximum of 250 devotees on a single day. This prayer is also restricted only to two days viz., 22.08.2020 and 23.08.2020.

[Shri Parshwatilak Shwetamber Tapagachh Murtipujak Jain Trust v. State of Maharashtra, 2020 SCC OnLine SC 665, order dated 21.08.2020]

Hot Off The PressNews

Supreme Court Registry has written to the President of Supreme Court Advocates on Record Association (SCAORA) informing about the decision made in a meeting held on August 11 by the 7-Judge Committee regarding the resumption of physical hearing of cases in the Court Rooms.

Here are the recommendations of the 7-judge committee: 

  • as a pilot scheme, three amongst the bigger Court Rooms maybe prepared for the physical hearing on an experimental basis while strictly adhering to the social distancing and other norms as per medical advice.
  • a limited number of cases may be listed for physical hearing in these Court Rooms after 10 days subject to the decision of the Competent Authority and upon prior consent of all parties in writing.
  • the numbers of the cases listed may be gradually increased if the ground situation so warrants and permits.
  • all the matters including miscellaneous matters listed on Mondays and Fridays shall continue to be heard through Video Conferencing as per the existing Standard Operating Procedure till further orders.
  • considering the vulnerability, in medical terms, of some stake-holders and their family members to the COVID-19 infection, particularly in the absence of a preventive vaccine or medicine/ procedures to mitigate cure or overcome the disease resulting from such infection, it has been recommended that requests from stake-holders for exemption from participation in any such limited physical hearing inside the Court Rooms may be considered favorably.
  • steps be taken to improve and strengthen e-filing and such other components of hearing through Video Conferencing.

The letter clarified that the recommendations mentioned relate only to the requests and suggestions received in respect of the functioning of the Supreme Court and such recommendations shall not apply in respect of any other Court, Tribunal, or adjudicatory authority in India.

The Supreme Court, since March 25, has been holding hearings through video conferencing due to a nationwide lockdown and even after the restrictions were relaxed, it has decided to continue with the practice. Justices NV Ramana, Arun Mishra, Rohington Nariman, U U Lalit, A M Khanwilkar, DY Chandrachud and L N Rao are part of the committee set up by the CJI to look into the issue of resumption of physical hearings in the Supreme Court again.


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