Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan and R. Subhash Reddy, JJ has directed that all old age people who are eligible for pension should be regularly paid pension and those identified older people should be provided necessary medicines, masks, sanitizers and other essential goods by respective States.

The Court further directed that as and when any individual request is made, the same shall be attended to by the Administration with all promptness. The care givers of those old age homes should be provided personal protection and appropriate sanitization should also be undertaken in the old age homes.

The direction was passed after it was told that the older people, who are living alone, are worst sufferers and they are not able to get medicines, masks, sanitizers and other essential goods. The care givers of these people are also not equipped with personal protection equipment and are also untrained. The petitioner submitted that the older people have already been identified since most of them are getting pension from the States under the different schemes and that appropriate direction be issued for timely payment of old age pension to all elder persons who are in receipt of the pension.

On the submission that the elderly people are not getting priority in the Government hospital irrespective of their capacity to pay, the Court observed that the elderly people should be given priority in the admission in the Government hospital looking to their vulnerability for COVID 19. In event of any complaint made by the elderly people, the hospital administration concerned shall take immediate steps to remedy their grievances.

The States have to file their reply affidavit within four weeks.

[Dr. Ashwani Kumar v. Union of India, Writ Petition(s)(Civil) No(s). 193/2016, order dated 04.08.2020]

Case Briefs

Supreme Court: While stating that the Jharkhand High Court has rightly ordered that Shravani Puja cannot be held holding big congregation fair not even the Kanwar yatra could be permitted due to COVID 19, the bench of Arun Mishra, BR Gavai and Krishna Murari, JJ noticed that total restrictions imposed by the High Court for entire months of Shravan and Bhado was not proper and that it should have been left at the discretion of the State Government, if Government can make an arrangement to permit restricted entry of general public in the temple maintaining social distancing.

“The High Court ought not to have directed that no entry should be permitted in the months of Shravan and Bhado. It is basically for the State Government to take a call on this.”

The High Court had, on July 3, 2020, passed an order that online darshan should be allowed during the entire course of Shravani Puja. Accordingly, directions have been issued for online darshan. At the same time, the High Court had also ordered that Puja of Jyotirlinga would continue during the month of Shravan and Bhado, but the same will be done by the temple trust without allowing any public participation.

The Court was also alarmed by the fact that thousands of pandas are gaining entry into the temple premises every day whereas entry of general public is not being allowed at all even in premises to have darshan from distance. On this, it said,

“we are not happy with the situation that thousands of pandas are being permitted entry in the temple every day. This cannot be said to be very conducive situation so as to prevent the spread of virus Covid 19. Entry of such large number of pandas, as alleged, should not be permitted.”

The Court said that the State and Trust should have made an arrangement for regulated entries of pandas while maintaining social distancing.

“… the State Government ought to have permitted systematically at least few hundred numbers of general public on the basis of online booking, giving them different timings of darshan, so that large congregation does not take place and maintaining social distancing for darshans at important festivals of the year but State has not done it so far and only two days are left from the final day of the Shravan month.”

It, hence, asked the State Government and the Temple Trust make an arrangement that no large congregation takes place even of pandas in the temple premises and Garbh Grih. It is The State Government must ensure that only limited number of persons, maintaining social distancing, be that they are pandas and priests of the temple, enter the premises at the same time in the temple premises.

The Court, however, refrained from issuing directions to the State Government to provide the entry. And requested it to find out a possibility for darshan, which ought to have been done for general public as is being done in Ujjain, an another Jyotirligam. In Ujjain, 300 persons are being allowed on the basis of prior online booking, giving them different timings. The Court requested the State Government to, if possible, permit darshan on the day of Purnima and in the month of Bhado also.

It, further, requested the State to find out a possibility of limited entry of general public in temples, churches and mosques in the State. If not outside State, at least the person from within the State as is being done at some other places.

“We direct consideration not only for the temple but in all such religious places whether it be Churches or Mosques, entry of limited number of persons/devotees should have been allowed as is being done throughout India. The State cannot shirk from its responsibility to enforce the social distancing norms, particularly when there is opening up of such places throughout the world.”

[Nishikant Dubey v. Union of India, Special Leave to Appeal (C) No(s). 8716/2020, order dated 31.07.2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: On the issue revolving around the timely payment of salaries of doctors and health workers during the period of COVID-19, Solicitor General Tushar Mehta told the bench of Ashok Bhushan, R, Subhash Reddy and MR Shah, that those doctors and health workers, who are quarantined, their period of quarantine cannot be treated as leave and he will obtain necessary instructions/clarifications in that regard.

He has further told the Court that the Ministry of Health and Family Welfare has passed an order on 18.06.2020 directing for payment of salaries of doctors and health workers during the period of COVID-19 on time and that five States i.e. Delhi, Maharashtra, Punjab, Tripura and Karnataka have not paid the salaries to the doctors and health workers on time to the full satisfaction. He, hence, submitted that appropriate steps in this regard shall be taken by the Central Government to ensure that salaries of doctors and health workers is released.

The Court has listed the matter on August 10, 2020 after Solicitor General sought for a week’s time in the matter.

On June 17, 2020, a 3-judge bench of Ashok Bhushan, S K Kaul and M R Shah, JJ directed the Centre to issue directions to states for payment of salaries and providing necessary quarantine facilities to doctors and healthcare workers engaged in treating COVID-19 patients. Earlier, the Court had observed,

“In war, you do not make soldiers unhappy. Travel extra mile and channel some extra money to address their grievances.”

[Dr. Arushi Jain v. Union of India, Writ Petition(s)(Civil) No(s).759/2020, order dated 31.07.2020]



SCC Online is now on Telegram and Instagram. Join our channel @scconline on Telegram and @scconline_ on Instagram and stay updated with the latest legal news from within and outside India.
Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has asked all States/UTs have to file affidavits on compliance of certain directions passed vide order dated 09.06.2020.

On 09.06.2020, the Court had directed all the States/Union Territories to take all necessary steps regarding identification of stranded migrant workers in their State which are willing to return to their native places and take steps for their return journey by train/bus. It has also issued other directions that included a direction to all States/UTs to make rules under the following 3 statutes:

  1. Inter­State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979;
  2. Construction Workers (Regulation of Employment and Conditions of Service) Act , 1996 and;
  3. Unorganized workers’ Social Security Act, 2008.

The Court had directed that short term and long term measures be taken under the newly framed Rules and a report be submitted to it. The Court, however, noticed

“Although several States have made rules under the above enactments but all necessary details regarding the steps taken by concerned States have not been brought on record.”

It, hence, directed that affidavit be filed by all the States/UTs indicating the steps taken by them with respect to above mentioned enactments within a period of three months.

In order dated 09.06.2020, the Court had also asked the concerned States and Union Territories to maintain record of all such migrant workers, who have arrived at different places. None of the States/Union Territories have, however, filed any affidavit giving details of the compliance of the aforesaid direction. Asking the States and UTs to file affidavits regarding the same within a period of three weeks, the bench said,

“The States are required to bring on record the mode and manner in which records of migrant labourers who have reached their native places are being maintained with their skill, nature of employment and other details.”

The Court made clear that the affidavits to be filed by States/Union Territories, details with regard to compliance of other directions as issued by this Court on 09.06.2020 be also detailed.

On Senior Advocate Dr. Abhishek Manu Singhvi’s  submissions on the issue of food security, health insurance for migrant labourers, presumption of work by migrant labourers and relaxation on insistence on registration, The Court said that it would consider the same after the necessary affidavits as indicated above are filed  by the States/Union Territories.

[IN RE: PROBLEMS AND MISERIES OF MIGRANT LABOURERS, SUO MOTU WRIT PETITION (CIVIL) NO.6 OF 2020, order dated 31.07.2020]


ALSO READ

Order dated 09.06.2020 on directions for transportation of migrant workers


SCC Online is now on Telegram and Instagram. Join our channel @scconline on Telegram and @scconline_ on Instagram and stay updated with the latest legal news from within and outside India.
COVID 19Hot Off The PressNews

Ministry of Home Affairs issues the UNLOCK-3 Guidelines.

Gist

Metro Trains, Cinema halls, swimming pools, entertainment parks, theatres, bars, auditoriums, etc. to remain prohibited from re-opening.

Night Curfew

Restrictions on the movement of individuals during the night have been removed.

Gymnasiums, Yoga Institutes will be allowed to open from August 5, 2020.

Lockdown shall continue to be implemented strictly in the Containment Zones till 31 August, 2020.


List of permitted and prohibited activities under UNLOCK-3

New MHA guidelines

Ministry of Home Affairs (MHA) issued new guidelines today, for opening up of more activities in areas outside the Containment Zones. In Unlock 3, which will come into effect from August 1, 2020, the process of phased re-opening of activities has been extended further. The new guidelines, issued today, are based on feedback received from States and UTs, and extensive consultations held with related Central Ministries and Departments.

Salient features of the new guidelines

  • Restrictions on movement of individuals during night (Night curfew) have been removed.
  • Yoga institutes and gymnasiums will be allowed to open from August 5, 2020. In this regard, Standard Operating Procedure (SOP) will be issued by the Ministry of Health & Family Welfare (MoHFW) for ensuring social distancing and to contain the spread of COVID-19.
  • Independence Day functions will be allowed with social distancing and by following other health protocols, e.g., wearing of masks etc. In this regard instructions issued by MHA on 21.07.2020 shall be followed.
  • After extensive consultation with States and UTs, it has been decided that schools, colleges and coaching institutions will remain closed till August 31, 2020.
  • International air travel of passengers has been permitted in a limited manner under the Vande Bharat mission.  Further opening up will take place in a calibrated manner.
  • All activities, except the following, shall be permitted outside containment zones:
  1. Metro Rail.
  2. Cinema halls, swimming pools, entertainment parks, theatres, bars, auditoriums, assembly halls and similar places.
  3. Social/ political/ sports/ entertainment/ academic/ cultural/ religious functions and other large congregations.

Dates for opening of these will be decided separately, based on the assessment of the situation.

  • Lockdown shall continue to be implemented strictly in the Containment Zones till 31 August, 2020. Containment Zones are required to be carefully demarcated by the State/ UT Governments with a view to contain the spread of COVID-19, after taking into consideration the guidelines issued by MOHFW.  Within the containment zones, strict perimeter control shall be maintained and only essential activities allowed.
  • These Containment Zones will be notified on the websites of the respective District Collectors and by the States/ UTs and information will also be shared with MOHFW.
  • Activities in the Containment Zones shall be monitored strictly by State and UT authorities, and the guidelines relating to containment measure in these zones shall be strictly implemented.
  • MOHFW will monitor the proper delineation of Containment Zones and implementation of the containment measures.

States to decide on activities outside Containment Zones

States and UTs, based on their assessment of the situation, may prohibit certain activities outside the Containment zones, or impose such restrictions as deemed necessary. However, there shall be no restriction on inter-State and intra-State movement of persons and goods. No separate permission/ approval/ e-permit will be required for such movements.

National Directives for COVID-19 management

National Directives for COVID-19 management shall continue to be followed throughout the country, with a view to ensure social distancing.  Shops will need to maintain adequate physical distancing among customers. MHA will monitor the effective implementation of National Directives.

Protection for vulnerable persons

Vulnerable persons, i.e., persons above 65 years of age, persons with co-morbidities, pregnant women, and children below the age of 10 years, are advised to stay at home, except for meeting essential requirements and for health purposes.

Use of Aarogya Setu

The use of Aarogya Setu mobile application will continue to be encouraged.

Click here to see MHA Order & Guidelines


[Source: PIB]

Ministry of Home Affairs

Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Bimal Julka, Chief Information Commissioner, noted that the RTI application seeking very pertinent information with regard to COVID-19 pandemic was shuttled between one public authority to another and held that the Ministry of Health and Family Welfare shall collate all the information and furnish the same to complainant and on its’ website.

Complainant sought records by way of his RTI application on the following points:

  • Date when the Government of India first received information on the coronavirus/Wuhan virus/ virus affecting China.
  • Whether any communication was received by the Government of India about a possible pandemic like situation in India between the period of November 2019 to March, 2020?
  • Copy of the minutes of meeting that took place into the possibility of declaring coronavirus a health emergency or not between the period of March 5th to March 14th, 2020.
  • Whether the Government of India/any of its ministries or departments had received warnings/alerts/communication from the World Health Organisation on the possibility of coronavirus affecting India?
  • Whether any internal reports on a possibility of a pandemic like situation arising in India was communicated within the Ministry or its departments?
  • Any intelligence information on the coronavirus diseases originating from China possibly affecting India in future?
  • Whether the Government of India/this Ministry or its various departments sought China’s assistance in getting the sample of Virus?
  • Was China requested to share virus genetic sequence?
  • On which date did ministry of health first communicated the information of Virus possibly affecting India to PMO?
  • When was the issue of inadequate PPE discussed in the Ministry?
  • Whether additional funds were sought on fight against the virus. If so the date on which the first request and subsequent requests were made and to whom be furnished?
  • Whether the Ministry proposed a ban on incoming Chinese citizens to India?
  • Whether the ICMR received any reports/communications/internal warnings/memos/internal reports during the period of November 2019 to March 2020 about the possibility of a pandemic like situation in India due to the virus: To this ICMR responded that all the information pertaining to circulars, notifications, etc, is available on the ICMR website.
  • Whether the Government of India/this Ministry or its various departments was monitoring the situation in China and its possible effects on India?

To almost all the above queries, ICMR responded with a standard response — Not pertains to ICMR.

Complainant remained dissatisfied with the respondent’s response.

RTI Act

Commission observed that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of public who having to seek information should be an exception.

Another significant observation was that, an open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms.

Accountability

Several decisions are being made by the Governments involving huge interventions in the healthcare impacting daily lives of billions of people, hence it is essential that the decisions are thoroughly documented in order for the Government to remain accountable.

Information pertaining to COVID-19

Complainant sought very pertinent information with regard to COVID-19 situation, which could not be made available by the Ministry of Health and Family Welfare.

Commission held that authentic, verified and cogent reply based on factual information needs to be furnished to the complainant as also disclose on the Public Authority website for the benefit of public at large.

Secretary, Health & Family Welfare was advised to have this matter examined at an appropriate level and the Nodal Authority so notified should furnish all the details sought by the Complainant in a clear, cogent and precise manner within a period of 30 days.

In view of the above complaints were disposed. [Saurav Das v. CPIO, CIC/ICOMR/C/2020/672284-BJ+CIC/MOHFW/C/2020/675866-BJ, decided on 23-07-2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: After the Central Government filed an affidavit orders have been issued to comply the directions issued by the Supreme Court on June 19, 2020 in suo motu petition on proper treatment of COVID-19 patients and dignified handling of dead bodies in the hospitals, the bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ said that

“Mere direction to comply the directions is not enough. The steps taken towards compliance of the directions have to be brought on the record.”

The Court also took note of the facts that the State Governments / UTs have not filed affidavits giving details of compliance of various directions issued by it on June 19, 2020. It was, hence, of the view that the Chief Secretaries of the States have to take steps to ensure that directions are complied with and an appropriate compliance report be filed within 2 weeks.

It also directed the Union of India to file detailed affidavit within two weeks giving the details of the various compliance of the directions issued vide order dated June 19, 2020.

The 3-judge bench of Ashok Bhushan, SK Kaul and MR Shah, JJ had, on June 19, 2020, issued detailed directions in the matter relating to deficiencies, shortcomings and lapses in patient care of Covid-19 in different hospitals in National Capital Territory of Delhi and other States where the Court had taken suo motu cognizance on the basis of media reports and programmes aired in several channels presenting horrific scenes from LNJP hospital, which is a COVID-19 dedicated hospital.

[IN RE THE PROPER TREATMENT OF COVID 19 PATIENTS AND DIGNIFIED HANDLING OF DEAD BODIES IN THE HOSPITALS ETC, 2020 SCC OnLine SC 604, Order dated 27.07.2020]


Read the detailed report on the directions issued on June 19, 2020 here.


SCC Online is now on Telegram and Instagram. Join our channel @scconline on Telegram and @scconline_ on Instagram and stay updated with the latest legal news from within and outside India

Hot Off The PressNews

The Delhi Government has issued a new circular dated 16.07.20 wherein they have shared  details regarding SMCs being reconstituted by a draw of lots. This circular has added information regarding tenure of such constituted SMCs, which was missing from the previous circular dated 01.07.20. The new circular states that these SMCs are being re-constituted only until elections can be held after the situation returns to normalcy. This signals a clear significant shift in the stance of Delhi Government in the aftermath of writ petition[1] filed in the Delhi High Court where in the Delhi Government had submitted that the SMCs being constituted by a draw of lots was only a stopgap arrangement

In the abovementioned petition, the petitioners had challenged the circular dated 1.07.2020[2] and prayed that the circular be quashed. The petitioners argued that the circular violated the spirit of the act as it didn’t allow parents to participate in the process of choosing who will represent them in SMCs. They contended  that extending tenure of the previous SMCs was a better option than reconstituting SMCs through a draw of lots. They gave examples of other states where tenure of SMCs were extended. The counsel for the petitioner, Garima Sharma, argued that it was a better option since members of existing SMCs already had experience of working in a SMC.

Despite the fact that the Delhi Government has been holding elections since RTE was implemented, the respondents submitted that there was no mandate to hold elections and that the Government had issued the impugned circular only as a stopgap arrangement.

The order released by the Delhi High Court on 14.07.20 has recorded the Delhi Government submitting in court  that the impugned circular has been issued “only as a stopgap arrangement and the SMCs so constituted by following the procedure as laid down in the impugned Circular shall continue till elections can be held after normalcy returns.” A fact that didn’t find any mention in the impugned circular dated 01.07.20.

The circular calls upon the head of schools to complete the reconstitution process of the SMCs through a draw of lots by the 21st of July, 2020.


[1] Indra v. Government of NCT of Delhi, Writ Petition (C) No. 4076 of 2020, dated 13-07-2020

[2]  http://www.edudel.nic.in/upload/upload_2017_18/117_129_dt_01072020.PDF

Case BriefsCOVID 19High Courts

Delhi High Court: Naveen Chawla, J. in an order dated 13th July, 2020 has refused to interdict a Delhi government circular which directed reconstitution of School Management Committees through a draw of lots instead of holding elections.The petitioners had challenged the circular dated 1.07.2020 and prayed that the circular be squashed. The petitioners argued that extending tenure of the previous SMCs was a better option than reconstituting SMCs through a draw of lots. They gave examples of other states where tenure of SMCs were extended. The counsel for the petitioner argued that it was a better option since members of existing SMCs already had experience of working.

Despite the fact that the Delhi Government has been holding elections since RTE was implemented, the respondents submitted that there was no mandate to hold elections and that the Government had issued the impugned circular only as a stopgap arrangement. The Circular shall continue till elections can be held after normalcy returns. The Counsel for the respondent government also mentioned that the petitioners had concealed that they have applied under the circular. The petitioners submitted that it was a bonafide mistake.

After listening to arguments from both sides, the Court stated that since elections cannot be held because of COVID 19, such extraordinary situations would require certain extraordinary measures to be taken by the respondents. The Court noted that respondents seem to have chosen one of the various alternatives that were available. With online classes for the Government schools having started there is an urgent need for the constitution of the SMCs.  The Court did not deem it fit to interdict the process started by the respondents at the present stage.and listed the matter for October 21st.

The order has recorded the government submitting in court that the impugned circular has been issued “only as a stopgap arrangement and the SMCs so constituted by following the procedure as laid down in the impugned Circular shall continue till elections can be held after normalcy returns.” A fact that didn’t find any mention in the impugned circular dated 01.07.20.

[Indra v. Government of NCT of Delhi, Writ Petition (C) No. 4076 of 2020, order dated 13-07-2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: The Institute of Chartered Accountants of India (ICAI) has submitted before the Supreme Court that the May cycle exams, slated to be held in July-August amid the COVID-19 pandemic, have been postponed till November 2020. The Court hence disposed of the writ petition and said,

“In view of the additional affidavit dated 06.07.2020 filed by respondent No.1-The Institute of Chartered Accounts of India (ICAI), as the examination scheduled in July, 2020 has been cancelled, nothing survives for consideration in the present Writ Petition. “

Ramji Srinivasan, the lawyer appearing for the ICAI, submitted before the Court that the institute had decided not to hold the CA examinations this semester and added that it is likely to postpone the same till November 2020.

The bench of Uday Umesh Lalit and Sanjiv Khanna, JJ disposed of the plea after hearing the submissions of ICAI. It, however, granted the petitioner the liberty to make a representation to the ICAI for remaining issues, if any. ICAI will have to make a decision on the same within four weeks.

“we intend to dispose of this Writ Petition, liberty is granted to the petitioner to make a representation to the ICAI in respect of other suggestions/issues which be decided by the ICAI on its own merits and in accordance with law expeditiously, preferably within four weeks from receipt of copy of the representation.”

The Court was hearing a petition filed by Anubha Shrivastava Sahai, the President of India Wide Parents Association, seeking directions to conduct the exams at a large number of centres amid appropriate precautions to prevent the spread of COVID-19.

Lawyer Alakh Alok Srivastava had appeared for the petitioner before the top court and was arguing through video conferencing in the matter. The plea also sought a stay on the “opt-out” scheme for around 3.46 lakh CA students, who were scheduled to appear in the May cycle exams, that was earlier set to be conducted by the ICAI (/topic/icai) between July 29 to August 16.

The ICAI had given its candidates, who had already submitted an online examination application for May 2020 Examination cycle, the option to opt-out from May 2020 examinations and carry forward their candidature to the next examination.

The court had earlier suggested the ICAI consider the students who are unable to appear for the exam to be considered an “opt-out case” even if they don’t choose the same.

[Anubha Srivastava Sahai v. Institute of Chartered Accountants of India, 2020 SCC OnLine SC 568 , order dated  13.07.2020]


(With inputs from ANI)

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, SK Kaul and MR Shah, JJ pulled up State of Maharashtra for submitting that it did not do the needful for arranging transportation of migrants who were still stranded in the State as it was not informed of the materials.

“The present is not an adversarial litigation and it is the duty of the State to find out shortcomings and lapses wherever found and to do the needful. The State cannot claim that unless the State is informed of the materials, it cannot reply or act.”

The Court was hearing the interim applications filed by Sarva Hara Jan Andolan and Delhi Sharmik Sangathan on 07.07.2020 where details with regard to the State of Maharashtra, migrants who are still awaiting to return and other difficulties faced in the State of Maharashtra were narrated.

The Court asked the State of Maharashtra to file affidavit by July 17, 2020 and give other details with regard to migrants who are still awaiting to return to their home town in the State of Maharashtra.

Earlier, on 09.06.2020, the bench had  directed all the States/Union Territories to take all necessary steps regarding identification of stranded migrant workers in their State which are willing to return to their native places and take steps for their return journey by train/bus which process may be completed within a period of 15 days.

The Court noticed that lapses and short-comings in implementing the schemes and policies have been highlighted by various intervenors in their applications and affidavits.

“The responsibility of the States/Union Territories is not only to referring their policy, measures contemplated, funds allocated but there has to be strict vigilance and supervision as to whether those measures, schemes, benefits reaches to those to whom they are meant.”

The Court had, on 26.05.2020, taken up the issue suo motu based on, newspaper and media reports and several letters and representations it received from different sections of society highlighting the problem of migrant labourers. The Court had directed the Solicitor General Tushar Mehta to assist the Court and by the next date of hearing bring in the notice of the Court all measures and steps taken by the Government of India and to be taken in this regard. After receiving the response from the Government, the Court had issued certain interim directions on May 28, 2020.

[IN RE : PROBLEMS AND MISERIES OF MIGRANT LABOURERS, 2020 SCC OnLine SC 563 , order dated 09.07.2020]


Also read

COVID-19| Transportation of stranded migrant workers must be completed in next 15 days

Op EdsOP. ED.

Background

In what may be diligently called as a political coup d’état , the Kamal Nath Government in the State of Madhya Pradesh was toppled in the early weeks of March, even before his Government could present the financial budget for the State. As a result of this political fiasco, he was replaced by Mr Shivraj Singh Chauhan of the Bhartiya Janta Party, who took the oath of Chief Ministership on 23rd March, 2020. He became the new Chief Minister of the State, overnight with no Council of Ministers in his cabinet. Unfortunately, in a few days of his becoming the Chief Minister, the nationwide lockdown was imposed and coronavirus cases in the State mushrooming incessantly, leading to the termination of the budget session of the legislative assembly. As a result, the State of Madhya Pradesh had no Council of Ministers and no yearly budget to manage the pandemic and its economic effects. This whole event in Madhya Pradesh unleashed new avenues of legal jurisprudence in the country.

To manage the financial affairs of the State and with no legislative session in place to pass the Finance Bill, the Government of Madhya Pradesh took an interesting route and the Governor under Article 213 promulgated two Ordinances, namely, the Madhya Pradesh Finance Ordinance, 2020 and the Madhya Pradesh (Vote on Account) Ordinance, 2020 on the aid and advice of the Chief Minister[1]. These two Ordinances currently work as the Finance Bill for the State.

Satisfaction of the Governor

It is trite that, under Article 213 of the Indian Constitution[2] when the Governor is satisfied that such circumstances exist which renders him to take immediate action in the absence of legislative assembly in session, he on aid and advice of the Council of Ministers headed by the Chief Minister can promulgate an Ordinance.

In  Samsher Singh v. State of Punjab[3], the Supreme Court affirmed that wherever for the exercise of any power or function, the Constitution calls for the satisfaction of the President or the Governor, as the case may be, the satisfaction required by the Constitution is not the personal satisfaction of the Governor but is the satisfaction of the Council of Ministers on whose aid and advice the Governor  exercises all his powers and functions.

Therefore when the Governor is under Article 213 promulgating an Ordinance, his satisfaction that necessary circumstances exist, must be based on the aid and advice of the Council of Ministers headed by the Chief Minister of the State under Article 163 of the Constitution.

Article 213 of the Constitution, is drafted in a manner that there is no defined contour to the nature of Ordinance that can be promulgated and therefore, if extraordinary circumstances demand even a Finance Bill, it can be enacted in the form of an Ordinance, thus promulgation of the Finance Bill in a way of the Ordinance in the unprecedented times of COVID-19 can be justified.

However, the major legal question that arises out of this event is, can the Governor act solely on the aid and advice of the Chief Minister with no Council of Ministers in the Government? Or in other words, can the cabinet of ministers having only the Chief Minister be called as the Council of Ministers, who can advise the Governor to promulgate any Ordinance?

Analysis

According to Article 163(1)[4], there shall be a ‘Council of Ministers with the Chief Minister at the head to aid and advice the Governor in the exercise of his functions, except insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion. Additionally, Article 164(1-A)[5] states that the total number of Ministers including the Chief Minister in the Council of Ministers in a  State shall not be less than twelve.

Article 163 is written in an extremely unambiguous manner, and therefore by the literal rule of interpretation, it is axiomatic that the Chief Minister is only a part of the Council of Ministers and functions as a link between the Cabinet and the Governor of the State. This view can also be interpreted from the judgement of Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh[6] Legislative Assembly, where the Supreme Court commented that the “Ordinance shall only be issued by the Governor, on the aid and advice of the Council of Ministers with the Chief Minister as the head”. With the Court emphasising on the role of the Council of Ministers itself implies that mere advice of the Chief Minister will not suffice and there must be a full-fledged cabinet to deliberate on the inevitability of the Ordinance and then send it to the Governor for his/her approval.

In another judgment of Pancham Chand v. State of H.P.[7], the Supreme Court went a mile ahead to comment that “…the Constitution does not envisage functioning of the Government through the Chief Minister alone, it speaks of a Council of Ministers…”. This is again suggestive of the fact that the Chief Minister with no cabinet in place, cannot go to an extent to advise the Governor to issue an Ordinance.

Even if for the sake of argument only, it is assumed that the Chief Minister can act on behalf of the Council of Ministers to advise the Governor and the above stated arguments are rejected. This will lead to a nonplussed situation where, the Ordinance is passed only on the advice of the Chief Minister with no recommendation being sought from the minister concerned, even in his presence. This can create dissatisfaction in the government motivating the  minister concerned to even disagree to implement the Ordinance, especially when the coalition government is running the State. Hence, the constitutional provisions themselves does not make it valid for such Ordinances to be passed merely on the advice of the Chief Minister irrespective of the presence or absence of the Council of Ministers.

Conclusion

Conclusively, when Article 213 of the Constitution empowers the Governor to promulgate an Ordinance, based on his satisfaction which will be founded on the aid and advice of the Council of Ministers headed by the Chief Minister. The Chief Minister will also have a limited role to play and even in compelling situations he/she cannot go ahead to act on behalf of the Council of Ministers and advice the Governor to enact the Ordinance. The presence of the Council of Ministers is not only compulsory but a constitutional obligation.

Thus, in the present factual matrix where the Ordinance is enacted by the Governor on sole advice of the Chief Minister of Madhya Pradesh can be legally held void because of the violation of the fundamental principle of Articles 213 and  163 of the Constitution. However, if the Supreme Court or the High Court, where the validity of this Ordinance is challenged takes a contrary stance justifying the Ordinance in light of COVID-19 pandemic, and affirms the discretionary power of the Governor to issue an Ordinance under Article 163(2) read with Article 213, it will be a very wide interpretation of the provisions and to an extent an unreasonable interpretation of the otherwise unequivocal language of the provisions and will set, in the authors’ humble opinion, a bad precedent where even something as vital and elementary as the Finance Budget will be re-routed by way of an Ordinance without consummating the fundamental obligation under the  Constitution.


*Third & Second Year students respectively, Institute of Law Nirma University, Ahmedabad

[1] The Times of India, Sibal, Tankha object to financial Ordinances, urge Prez to withdraw, (April 21, 2020, 04:37 IST) https://timesofindia.indiatimes.com/city/bhopal/sibal-tankha-object-to-financial-ordinances-urge-prez-to-withdraw/articleshow/75259418.cms.

[2] Article 213.

[3] Samsher Singh v. State of Punjab, (1974) 2 SCC 831.

[4] Article 163(1)

[5] Article 164(1-A)

[6] Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1.

[7] Pancham Chand v. State of H.P., (2008) 7 SCC 117 

COVID 19Hot Off The PressNews

Supreme Court: The 3-judge bench of AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna, JJ gives more time to ICAI after it submits that it needs to assess the situation if exams can be conducted at all considering the COVID-19 situation getting worse. 

ICAI told the Court that it needed to assess the examination centres at PAN India level in order to come to a final decision and needed more time to do the same. The Court will now take up the matter on July 10, 2020.

The Court had, on June 29, 2020, asked ICAI to issue fresh Notification for conduct of CA examinations and had listed the matter on July 2, 2020 after ICAI sought for short adjournment for taking instructions and producing draft notification/circular, likely to be issued to address the stated concerns of the students/candidates.

The Court suggested ICAI that a student who has been unable to appear for the exam should be considered an “opt-out case” even if they don’t choose the opt-out option. Considering that the situation and conditions of COVID-19 are continuously changing, the Court said,

“if a candidate has not chosen opt-out option and they suddenly come under a containment zone what will you do? You should treat candidates who don’t appear as opt-out cases,”

Senior Advocate Ramji Srinivasan told the Court that out of 3 lakh 46 thousand students registered only 53,000 students have taken the opt-out option.

The ICAI’s scheme allows students to opt-out of the exam. Their exam would be deemed to be cancelled.

The Court is hearing a please seeking a stay on the ICAI’s ‘opt-out’ scheme for CA students scheduled to appear for the May cycle exam between July 29 and August 16. The PIL has also sort also sought more examination centres for the conduct of July CA Exam 2020. The petition states the ‘opt-out’ scheme discriminates against students living in remote areas or containment zones as due to the restrictions, they would be forced to opt-out unlike their counterparts living in urban areas.

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna, JJ has asked ICAI to issue fresh Notification for conduct of CA examinations and has listed the matter on July 2, 2020 after ICAI sought for short adjournment for taking instructions and producing draft notification/circular, likely to be issued to address the stated concerns of the students/candidates.

The Court suggested ICAI that a student who has been unable to appear for the exam should be considered an “opt-out case” even if they don’t choose the opt-out option. Considering that the situation and conditions of COVID-19 are continuously changing, the Court said,

“if a candidate has not chosen opt-out option and they suddenly come under a containment zone what will you do? You should treat candidates who don’t appear as opt-out cases,”

Senior Advocate Ramji Srinivasan told the Court that out of 3 lakh 46 thousand students registered only 53,000 students have taken the opt-out option.

The ICAI’s scheme allows students to opt-out of the exam. Their exam would be deemed to be cancelled.

The Court is hearing a please seeking a stay on the ICAI’s ‘opt-out’ scheme for CA students scheduled to appear for the May cycle exam between July 29 and August 16. The PIL has also sort also sought more examination centres for the conduct of July CA Exam 2020. The petition states the ‘opt-out’ scheme discriminates against students living in remote areas or containment zones as due to the restrictions, they would be forced to opt-out unlike their counterparts living in urban areas.

[Anubha Srivastava Sahai v. The Institute of Chartered Accountants of India, 2020 SCC OnLine SC 551 , order dated 29.06.2020]

(With inputs from India TV News)

Case BriefsCOVID 19Supreme Court

Supreme Court: In an urgent hearing on Sunday evening, the 3-judge bench of AM Khanwilkar, Dinesh Maheshawari and Sanjiv Khanna, JJ has dismissed the petition challenging the conduct of Rajasthan Board examination from June 29 to June 30, 2020.

The conduct of examination was challenged on the ground of inappropriate facilities or the possibility of exposure of the students to COVID-19 due to breach of standard operating procedure. However, the Court noticed that the petitioner failed to,

“… highlight the deficiency of facilities or for that matter flouting of any protocol specified by the Central Government or State Government in any examination centre, whilst conducting such examination during the COVID-19 pandemic situation.”

The Court also took note of the fact that as per the schedule published in the official website of the Board of Secondary Education, Rajasthan, Ajmer, the examinations have been held on  from June 18 to June 20, 2020 and June 22 to June 27, 2020. The Court, hence, found no force in the submissions of the petitioner and dismissed the petition.

[Maghi Devi v. Union of India, 2020 SCC OnLine SC 546 , decided on 28.06.2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: Passing final order in the CBSE cancellation of CBSE Board examination issue, the 3-judge bench of AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna, JJ has directed that petitions pertaining to CBSE examinations pending in this Court or any other Court shall be deemed to be disposed of in terms of the proposed notification to be issued by the CBSE, after CBSE placed the draft Notification before it.

The Draft Notifications proposes to cancel the Board examinations for classes X and XII which were scheduled from 1st July to 15th, 2020. Here are the other key highlights of the Draft Notification:

  • Assessment of the performance of students in the cancelled examinations will be done based on the assessment scheme as suggested by competent committee of the CBSE for declaration of result for both class-X and class-XII.”
  • Results to be announced by July 15, 2020.
  • For Class-XII, CBSE will conduct an optional examination in the subjects whose examinations were scheduled to be conducted from 1st July to 15th July, 2020 as soon as conditions are conducive, as assessed and decided by the Central Government.

“Candidates whose results will be declared based on the assessment scheme will be allowed to appear in these optional examinations to improve their performance, if they wish so.”

  • For candidates in Class X, no further examinations will be conducted and the result declared by CBSE on the basis of assessment scheme will be treated as final.
  • For class-XII, the result declared by the CBSE on July 15, 2020 will be considered as final unless the students opt for optional examination.

The Court, further said that if any other petition is pending in the Supreme Court or any other Court concerning the subject of conducting examinations for Classes X and XII by the CBSE scheduled from 1 st July, 2020 to 15th July, 2020, the same will be governed by this order and the notification approved by this Court.

Regarding ICSE Board examinations, it was submitted before the Court that the ICSE would issue similar notification with additional aspects referred to in the affidavit filed by them. However,

“ICSE may consider of conducting optional examination for Class X as well and abide by the same terms as regards the optional examination regarding Class XII referred to in the draft notification of CBSE…”

ICSE will also notify it’s Assessment Scheme within one week from today on it’s website.

The Court, hence, ordered that all proceedings/petitions pertaining to the subject matter of conducting examinations for classes X and XII by ICSE for Academic Year 2019-2020 pending in the Supreme Court or any other Court shall be deemed to be disposed of accordingly.

[Amit Bathla v. Central Board of School Education, 2020 SCC OnLine SC 541 , order dated 26.06.2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: After Solicitor General Tushar Mehta submitted before the bench of AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna, JJ that CBSE has cancelled the remaining class 10 and 12 Board exams, which were earlier rescheduled to be held between July 1 to July 15, the Court said that it will pass the appropriate orders in the matter tomorrow i.e. on 26.06.2020.

The Court had, on 23.06.2020, deferred the hearing in the plea filed by a group of parents after the Solicitor General told the the CBSE was in the process of taking a final decision in the matter.

Plea filed by a group of concerned parents stated that the CBSE has cancelled the examinations of Class 10 and 12 for its around 250 schools situated abroad and will be awarding marks on the basis of either practical exams or an internal assessment because of the pandemic. The parents seek to cancel the CBSE Class 10 and 12 exams in the wake of the spike in the COVID-19 positive cases in the Country.

[Amit Bathla v. Central Board of School Education, 2020 SCC OnLine SC 539 , order dated 25.06.2020]

Case BriefsCOVID 19High Courts

Delhi High Court: Rajiv Shakdher, J. granted injunction relief to the manufacturer of “Corona Beer” while injuncting the defendants from:

reproducing, broadcasting, communicating to the public, screening, publishing and distributing the impugned advertisement (which likens the plaintiff’s product with Coronavirus) on any media or platform including the social media platforms.

Plaintiff is the manufacture of a beer with the registered trademark “CORONA” with a world wide reputation.

The defendant was engaged by the plaintiff as its distributor for the National Capital Territory of Delhi.

Pravin Anand, Advocate who appeared on behalf of the plaintiff informed the Court that the distributorship agreement spanned between 2014-2015.

Grievance of the petitioner

Defendant has taken out advertisements on the social media platform i.e. Facebook which likens the plaintiff’s product with Coronavirus.

Court’s Analysis

Bench stated that the plaintiff has been able to set up a prima facie case in its favour qua disparagement.

Balance of convenience also appears to be in favour of the plaintiff given the extent and nature of its market qua the aforementioned product.

Thus, while issuing summons in the suit and notice, defendant, its employees, agents, officers, affiliated entities and all others acting for and on its behalf are injuncted from reproducing, broadcasting, communicating to the public, screening, publishing and distributing the impugned advertisement on any media or platform including the social media platforms till the next date of hearing.

Matter to be re-notified on 22-07-2020. [Cerveciria Modelo De Mexico, S. De R.L. De C.V. v. Whiskin Spirits (P) Ltd., 2020 SCC OnLine Del 665 , decided on 22-06-2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna, JJ has deferred the hearing in the plea seeking quashing of the CBSE notification for conducting the remaining Class 10 and 12 exams from July 1 to 15, to Thursday after the Solicitor General Tushar Mehta informed the Court that 

“the expert body is in the process of taking final decision in the matter very shortly and hopefully by tomorrow i.e. 24th June, 2020.”

Plea filed by a group of concerned parents stated that  the CBSE has cancelled the examinations of Class 10 and 12 for its around 250 schools situated abroad and will be awarding marks on the basis of either practical exams or an internal assessment because of the pandemic. The parents seek to cancel the CBSE Class 10 and 12 exams in the wake of the spike in the COVID-19 positive cases in the Country.

The Court will now hear the matter on 25.06.2020 after CBSE takes a final decision in the matter.

The Court also deferred a related matter dealing with cancellation of the Indian School Certificate Examinations (ISCE) to 25.06.2020.

[Amit Bathla v. Central Board of School Education, 2020 SCC OnLine SC 537, order dated 23.06.2020]

Case BriefsCOVID 19Supreme Court

Supreme Court: Allowing Odisha Government to conduct Jagannath Puri Rath Yatra, the Court has said,

if it is possible to ensure that there is no public attendance, we see no reason why the Rath Yatra cannot be conducted safely along its usual route from temple to temple.”

Taking note of the fact that in the 18th-19th century a yatra of this kind was responsible for the spread of cholera and plague “like wild fire”, the Court said that the authorities concerned should remain aware that the situation can become dangerous if the rules of caution are ignored.

Refusing to micro-manage the rituals, the Court left it to the wisdom of State, the Centre and temple management to conduct Puri’s Rath Yatra, scheduled to start from June 23, in a restricted manner in the wake of COVID-19.

The order of the Court came after Centre sought modification in Jagannath Puri Rath Yatra order dated 18.06.2020 wherein the 3-judge bench of SA Bobde, CJ and Dinesh Maheshwari and AS Bopanna, JJ had directed that there shall be no Rath Yatra anywhere in the temple town of Odisha or in any other part of the State this year.

In the affidavit submitted before the Court, the Odisha Government said its apprehension is primarily related to thousands of Rath Yatras taking place all over the state but it can only be limited to Puri alone without public attendance as proposed by Gajapati Maharaj of Puri, Chairman of the Puri Jagannath Temple administration. The government said it will make the necessary arrangements to conduct it accordingly.

The Court, hence, issued the following directions:

  • All entry points into the City of Puri, i.e., airports, railway stations, bus stands, etc., shall be closed during the period of Rath Yatra festival.
  • State Government shall impose a curfew in the City of Puri on all the days and during all the time when Rath Yatra chariots are taken in procession. To start with, the curfew shall begin tonight at 8 P.M.
  • Each Rath, i.e., Chariot, shall be pulled by not more than 500 persons. Each of those 500 persons shall be tested for the Coronavirus. They shall be permitted to pull the chariot only if they have been found negative. The number 500 shall include officials and police personnel.
  • There shall be an interval of one hour between two chariots.
  • Each of those who is engaged in pulling the chariot shall maintain social distancing before, during and after the Rath Yatra.
  • Only such persons shall be associated with the rituals who have been found to have tested negative and shall maintain social distancing.
  • The primary responsibility for conducting the Rath Yatra in accordance with the conditions and other norms shall be that of the Committee in-charge of Puri Jagannath Temple Administration. Each member of the Committee shall be responsible for due compliance with the conditions imposed by this Court and the general directions which govern ensuring of public health issued by the Union Government. In addition, the officers designated by the State Government for conduct of the Rath Yatra shall be responsible likewise.
  • The rituals and the Rath Yatra shall be freely covered by the visual media. The State Government shall allow TV cameras to be installed at such places as may be found necessary by the TV crew.
  • The bare minimum number of people shall be allowed by the Committee to participate in the rituals and in the Rath Yatra.
  • State Government may take such help as may be found necessary from the Union Government.
  • State Government shall maintain a record containing details of all those who have been allowed to participate in the Rath Yatra or the rituals connected therewith along with details of their medical conditions after testing.

While passing the aforementioned directions, Court said,

“…State of Orissa has a good record of having controlled the pandemic with a very little loss of life. We see no reason why the same attitude of care and caution should not be applied to the Rath Yatra.”

[Odisha Vikash Parishad v. Union of India, 2020 SCC OnLine SC 533 , order dated 22.06.2020]