Case BriefsCOVID 19High Courts

Madras High Court: R. Mahadevan, J., while addressing the issue of Government stalling collection of fees, held that,

Federation of Association of Private Schools in Tamil Nadu shall formulate a scheme with respect to collection of fees, not based on the fee structure framed by the Committee, but in instalments for a while, without prejudice to the rights of the parents and children.

State of Tamil Nadu will then take a decision on the above formulated scheme and report to the Court.

Petitioners interest should be protected — why?

K.M. Vijayan, Senior Counsel for the petitioners has contended that even under the Disaster Management Act, conducting classes through electronic media is declared as one of the choices to impart education; several schemes were framed both by Centre and State Governments for COVID-19 crisis, but no scheme with regard to the welfare and protection of the educational institutions was framed.

Further he added that any order that would restrain the private school/college managements from collecting fees would cause embarrassment to them.

“…education is being imparted online and students are availing benefit thereof, the institutions are entitled to charge tuition fees, to meet out their infrastructural expenses.”

Plight of the parents

Taking into consideration the plight of the parents, Advocate General, Vijay Narayan submitted that Government passed impugned order invoking the provisions of Disaster Management Act, restraining the private schools to forcibly collect fees from parents which does not prevents parents from paying the fees voluntarily.

Hema Muralikrishnan, Counsel appearing for private schools contended that Government wants the institution to pay the salaries of the teachers without collection of fees from students.

Bench

Court on perusal of the above contentions, passed the following order:

“petitioners herein are directed to formulate an equation / Scheme with respect to collection of fees, not based on the fee structure framed by the Committee, but in instalments for a while, without prejudice to the rights of the parents and children, by way of detailed representations and submit the same to the Government, with an advance copy marked to the learned Advocate General, through e-mail on or before 02.07.2020.

On such representations being submitted, the respondent Government shall consider the same, take a decision and file a report before this Court, on or before 06.07.2020.”

Matter to be listed on 08-07-2020.[Federation of Association of Private Schools in Tamil Nadu v. All India Private Educational Institutions Association, WPs No. 8490 to 8492 of2020, decided on 30-06-2020]

Hot Off The PressNews

Lt. Governor Anil Baijal, issues an Order exercising powers under Section 18(3) of the Disaster Management Act, stating that Government and private hospitals and nursing homes situated in the NCT of Delhi have to extend medical facilities to all COVID-19 patients coming for monitoring /treatment without any discrimination.

Medical treatment should not be denied to any patient on the ground of not being a resident of Delhi.

The above Order of LG, Anil Baijal came into effect after the Delhi Government had come out with an Order which had laid the distinction between Delhi Residents and non-Delhi Residents, wherein all the hospitals operating under Delhi Government and all the private hospitals to ensure that only bonafide resident of Delhi are admitted in these hospitals.

However, treatment relating to oncology, transplantation, neuro-surgery shall continue for all patients irrespective of the place of residence.Also, any Medico-Legal Victims of road accidents, acid-attack happening within NCT of Delhi to continue for all patients, irrespective of place of residence.

Following documents were to be treated as valid proof of residence: 1) Voter ID 2) Bank/Kisan/Post office current passbook or 3) Patient Ration Card/Passport/DL/Income Tax Return filed or assessment order, or 4)Latest Water/Telephone/Electricity/Gas Connection Bill for that address, either in the name of the patient or that of his/her immediate relation like parents etc.,or 5) Postal department’s post received/delivered in the patient’s name at the given address 6) in case of minors, above mentioned documents in the name of parents’, or 7) Aadhaar card made prior to June 7, 2020.

 

COVID 19Hot Off The PressNews

What did Ministry of Home Affairs state in the May 17th, 2020 Order with regard to the ‘Payment of Wages’?

On 29th March, 2020, Ministry of Home and Affairs had issued an Order wherein additional measures to alleviate the hardships of migrant workers was the focus.

Following the above, National Executive Committee in exercise of its powers conferred under Section 10(2)(1) of Disaster Management Act, 2005, State/UTs were asked to issue necessary order and 5 additional measures were issued amongst which, following was with regard to payment of wages to workers,

All employers, be it in the Industry or in the shops and commercial establishments, shall make payment of wages of their workers, at their work places, on the due date, without any deduction for the period their establishments are under closure during the lockdown.

According to the said order, Employers were asked to may payment of wages without any deduction for the period of closure to the workers.

Whereas, according to the May 17, 2020 Order wherein the guidelines for Lockdown 4 has been issued, Ministry of Home Affairs has explicitly stated that the following:

“Whereas, save as otherwise provided in the guidelines annexed to this Order, all Orders issued by NEC under Section 10(2)(1) of the Disaster Management Act, 2005, shall cease to have effect from 18.05.2020”

According to the said statement, the measure regarding payment of wages by the employers without any deduction for the period of closure to the workers shall have a ceased effect which came into effect from 18th May, 2020.

Case BriefsCOVID 19High Courts

Bombay High Court:  Bharati Dangre, J., addressed a complaint wherein a verbal altercation took place for the reason that applicant was asked to wear a mask.

Complainant alleged that while he was on duty of bandobast for prevention of CoronaVirus, the applicant on being asked to wear the mask entered into a verbal altercation.

The complaint filed referred to the above-stated altercation in detail and alleged that he was instigated in discharge of his official duty by the applicant and as far as the assault was concerned, complaint stated that he placed his hand on his shoulder.

Offence had been registered under Sections 323, 353 and 506 of Penal Code, 1860 against the applicant and relevant provisions of Disaster Management Act, 2005.

Bench observed that on prima facie what emerges is a verbal altercation between complainant and applicant while latter was discharging his duty. No ingredients of Sections 323 and 353 of Penal Code, 1860 are made out.

Thus in view of the above, applicant was granted ad-interim bail. Court also directed the applicant to not directly or indirectly make any inducement, threat or promise to any persons acquainted with facts of the case to dissuade him from disclosing the facts to Court or nay Police Officer.  [Shekhar v. State of Maharashtra, LD VC Anticipatory Bail Application No. 37 of 2020, decided on 05-05-2020]

Fact ChecksNews

A social media message has been doing the rounds which reads as follows:

“Mandate To All. Tonight 12 (midnight) onwards Disaster Management Act has been implemented across the country. According to this update, apart from the Govt department no other citizen is allowed to post any update or share any forward related to Coronavirus and it being a punishable offence. Group Admins are requested to post the above update and inform the groups.”

This message has led many Whatsapp admins and other social media group admins to ban members from posting any news or information about COVID-19, even information that can be categorised as helpful or authentic.

Let us test the veracity of these claims. In an order dated 24th March, 2020[1], the National Disaster Management Authority under Section 6 (2)(i) of the Disaster Management Act, 2005 (DMA) gave instructions to departments of Central Government, State Government and State Authorities to take measures to control spread of the disease. The order also directed the National Executive Committee to issue necessary guidelines under Section 10 (2)(l) to that effect. Therefore, we are aware that sections of DMA were invoked to mitigate the risks of the pandemic.

If we look at provisions of DMA, specifically Section 54 which deals with punishment for false claims. This section states that whoever makes or circulates a false alarm or warning as to a disaster or its severity or magnitude which leads to panic, will be punishable with imprisonment of upto one year, upon conviction.

This section clearly states that information that is false and what leads to panic is punishable, not all information from verifiable sources.

Another Act to deal with a pandemic of this nature is the Epidemic Act, 1897. Under Section 2 of this Act, state governments and union territories can take special measures and formulate regulations to contain the disease. Section 3 provides that disobedience of any regulations can invite penal provisions under Section 188, Penal Code, 1860. Post this, many state governments have invoked the Epidemic Act including Delhi [2] , Karnataka [3] , Gujarat [4] etc. Under Section 188, Penal Code, 1860  one can be punished only if one disobeys the rules of a public servant (i.e. rules prescribed by various state governments in this case). Nowhere does it mention that one can be punished for a mere discussion on the pandemic.

Similarly, under Section 505 (1)(b), Penal Code, 1860 any person who makes, publishes or circulates information that is likely to cause alarm to the public or is against public tranquility, etc is punishable with imprisonment. Again under the ambit of this section, only that speech is punishable that leads to panic or false alarm and not “all speech”.

Even the Supreme Court in an order dated as recent as 31st March, 2020 [5] , told the media to maintain a strong sense of responsibility and ensure that unverified news capable of causing panic is not disseminated however the Court also stated that it does not intend to interfere with the free discussion about the pandemic but directed the media refer to and publish the official version about the developments.” [6]

The Government has far-reaching powers under the Epidemic Act, 1897 and the Disaster Management Act, 2005 however these powers are not meant to intrude upon freedom of speech as long as they are used to disseminate genuine information and not to cause alarm or spread panic among the public.

In conclusion, the message quoted above which has made it’s way in multitude WhatsApp groups is fake. There is no need to worry if genuine and verifiable information, which is the need of the hour, is being shared with the members of a WhatsApp group.


[1]https://ndma.gov.in/images/covid/ndmaorder240320.pdf

[2] https://main.sci.goc.in/pdf/cir/covid19_14032020.pdf (page 3 onwards)

[3] https://www.simpliance.in/files/news/Karnataka%20Epidemic%20Diseases,%20COVID-19%20Regulations,%202020.pdf

[4] https://nrhm.gujarat.gov.in/Portal/News/218_1_Notification-14-03-2020.pdf

[5] Alakh Alok Srivastava v. Union of India, WP(s) (Civil) No(s). 468/2020, order dated 31-03-2020

[6] https://www.scconline.com/blog/post/2020/3/31/coronavirus-covid-19-food-is-being-provided-to-over-22-lakh-migrant-workers-centre-tells-sc/

Case BriefsCOVID 19High Courts

Kerala High Court: A Division Bench of A.K. Jayasankaran Nambiar and Shaji P. Chaly, JJ. while addressing the urgent matter with regard to removal of blockade erected by Karnataka State connecting to State of Kerala in order directed Centre to take note of the same in order to save human lives.

In the present matter, Advocate General of Karnataka submitted that few of the road routes from Karnataka to Kerala bordering Kannur District, that had been blocked by the State of Karnataka could be opened and maintained as such till the lifting of the lockdown arrangement  to facilitate transportation of essential commodities to the State of Kerala.

Further he sought time to ascertain whether it would be possible to remove block over roads bordering Kasaragod District, so as to facilitate the movement of vehicles carrying patients who required urgent medical attention.

Central Government Standing Counsel submitted that efforts were on to try and bring about an amicable resolution of the issue and that a meeting with Chief Secretaries of the two States was also being considered.

Additional Advocate General of Kerala pointed that when the right to life of a citizen is at stake, and the action of State of Karnataka in erecting blockades that prevent the movement of persons seeking medical relief.

The said action goes against the guidelines issued by Centre under Disaster Management Act and Government of Karnataka under the Epidemic Diseases Act, 1897 read with enabling provisions under DMA 2005, Court ought not to wait any longer and must pass urgent orders to protect fundamental right of the citizens.

Central Government Standing Counsel pointed out that although Centre has issued guidelines under DMA, State Governments have been given freedom to relax conditions based on ground realities.

Adding to his submissions, he stated that the issue in question involves policy considerations which this Court would not ordinarily interfere with.

Decision & Analysis of the Court

“We have no option now, but to pass this order with a view to safeguard fundamental rights of citizens during this grim period in our country’s history.”

Th restrictions imposed by the State of Karnataka, through the blockades erected has resulted in loss of many lives.

No results have been produced even after discussion between the Centre and State Government.

Any delay in resolving the stalemate could be catastrophic for the residents of Kasargod District in Kerala.

Bench observed that,

Right of a citizen to move freely throughout the territory of India, subject to reasonable restrictions that may be imposed in the interests of the sovereignty and integrity of India, security of the State, public order etc. is recognised under Article 19 (1)(d) of Constitution.

A citizen also has a fundamental right to life and personal liberty guaranteed to him by the State under Article 21 of our Constitution.

The above stated rights are simultaneously infringed — in the case of a resident of State of Kerala when he/she is denied entry into State of Karnataka for availing medical treatment or is deprived of essential articles of food that are being transported into the State through blockades erected by State of Karnataka.

Restrictions imposed on transportation of essential articles of food would also amount to breach of rights protected under Articles 301-304 of Constitution of India.

State Government of Karnataka cannot be heard to contend that it is not obliged to respect fundamental right of a citizen who resides outside its territorial limits. 

Being a part of Union of India, State of Karnataka necessarily has to respect and guarantee the fundamental right of a citizen of this country irrespective of the place of his residence or domicile within the country.

Bench in the above view states that,

“..we hope that State Government of Karnataka would take note of the basic principles enshrined in our Constitution and take immediate steps to resolve the present stalemate.”

Hence, concluding it’s decision, the Court held that the material roads that connect Mangalore in Karnataka, to Kasargod in Kerala are a part of National Highway network and it is therefore Central Government’s duty to ensure that the said roads are kept free of blockades.

Restrictions may be imposed in times of national emergency as that is in the present times, but when the guidelines issued by Central Government merits travel for urgent medical treatment, then the said guidelines are necessarily to be enforced through the removal of blockades that prevent such travel.

Court directs Centre to intervene in the present matter and ensure that the blockades are removed without any further delay so as to facilitate free movement of vehicles carrying persons for urgent medical treatment across the border between two States.[Kerala High Court Advocates’ Assn. v. State of Kerala,  2020 SCC OnLine Ker 1302, decided on 01-04-2020]

COVID 19Legislation UpdatesNotifications

To alleviate sufferings of the people during the 21-day nationwide lockdown, Union Home Minister Amit Shah has communicated to the State/UT governments to take appropriate measures to ensure effective implementation of the lockdown measures on maintaining social distance, while mitigating the economic hardship of the migrant workers during this period.

Under the directions from the Union Home Minister, the Union Home Secretary has written to the States/UTs to take measures to create relief shelters with all basic amenities and mitigate economic hardships to prevent movement of a large number of migrant workers to their domicile States, so as to prevent the spread of COVID-19.

To ensure effective implementation of the lockdown measures, and to mitigate the economic hardship of the migrant workers, all States/UTs have been advised to take following additional measures:

  • State/UT Governments to ensure adequate arrangements of temporary shelters, and provision of food etc. for the poor and needy people, including migrant labourers, stranded due to lockdown measures in their respective areas;
  • The migrant people, who have moved out to reach their home states/ home towns, to be kept in the nearest shelter by the respective State/UT Government quarantine facilities after proper screening for a minimum period of 14 days as per standard health protocol;
  • All the employers, be it in the Industry or in the shops and commercial establishments, to make payment of wages of their workers, at their work places, on the due date, without any deduction, for the period their establishments are under closure during the lockdown;
  • It is to be ensured that wherever the workers, including the migrants, are living in rented accommodation, the landlords of those properties must not demand payment of rent for a period of one month.
  • If any landlord is forcing labourers and students to vacate their premises, they will be liable for action under the Act.

In case of violation of any of the above measures, the respective State/UT Government, would take necessary action under the Disaster Management Act, 2005 and the District Magistrate/ Deputy Commissioner and Senior Superintendent of Police/ Superintendent of Police/ Deputy Commissioner of Police would be personally liable for implementation of the above directions and lockdown measures issued earlier.

Read the Order here: MHA ORDER TO STATES/UTs


Ministry of Home Affairs

[Press Release dt. 29-03-2020]

[Source: PIB]

COVID 19Legislation UpdatesNotifications

Additional essential Goods and Services included in the exempt list

Ministry of Home Affairs (MHA) has issued an addendum to the guidelines, and subsequent addendums, to all Ministries/Departments (https://pib.gov.in/PressReleseDetail.aspx?PRID=1608644), regarding the Nationwide lockdown to fight Corona Virus.

The second addendum lays down additional categories of essential goods and services exempted under the Disaster Management Act 2005, with respect to the 21- day lockdown.


Ministry of Home Affairs

[Press Release dt. 29-03-2020]

[Source: PIB]

COVID 19Hot Off The PressNews

Ministry of Home Affairs (MHA) has issued an addendum to the guidelines to all Ministries/Departments issued yesterday (https://pib.gov.in/PressReleseDetail.aspx?PRID=1607997), regarding the Nationwide lockdown to fight Corona Virus.

This addendum lays down additional categories of essential goods and services exempted under the Disaster Management Act, with respect to the 21- day lockdown.

Original Guidelines Document

Addendum to the Guidelines


Ministry of Home Affairs

[Press Release dt. 25-03-2020]

[Source: PIB]