Case BriefsHigh Courts

Punjab and Haryana High Court: While deciding the instant petitions filed by the several unaided private schools and educational institutions, all of which challenged the directions issued by the Director, School Education, wherein the schools were required to not charge any tuition fee for the lockdown period; Nirmaljit Kaur, J., held that direction to the privately unaided Institutions who are not giving online classes not to charge tuition fee for the lockdown/curfew period is discriminatory and arbitrary, as there is no rationale in laying down such a classification especially when the obligations and basic expenses of all private un-aided schools remain the same irrespective of whether they are conducting online classes or not.   

The petitions challenged the DSE Memo dated 14-05-2020. Apart from the aforementioned direction regarding tuition fee, the Memo also directed the schools to not increase the school fees for the 2020-21 Session and not to remove any teacher or reduce their salaries. The counsels for the petitioners raised questions on the authority of the State Government to issue such Memo and argued that the Directions were arbitrary and defy any logic. They contended that it is an inherent right of a private school to generate funds for their functioning and financial obligations including salaries of the teaching and non teaching staff. For the respondents, Advocate General Atul Nanda argued that Article 162 empowers the State to issue directions on matters enumerated in List II of State List of the Seventh Schedule, which also extends to List III-Concurrent List, except as provided in the Constitution itself or in any law passed by the Parliament. The respondents further argued that policy decisions cannot be tested under Article 226 of the Constitution.

They further contended that the petitioners do not have a uniform fee structure and the breakup of school fee and expenses for each school also differ. R.S. Bains, counsel for the parents who had been impleaded as party respondents, submitted that the parents should not be made to pay for the services which have not been rendered, especially when either some of the schools did not offer online services or because they reside in remote areas where the online facilities are not available.

Perusing the contentions of the parties, the Bench deemed it fit to lay down the following guidelines regarding the issue-

  • The schools can collect the admission fees. All schools irrespective whether they offered online classes during the lock-down period or not, are entitled to collect the tuition fee. However, they will continue to endeavour and impart online/ distance learning so that education is not adversely impacted due to the present or future lockdowns imposed due to COVID-19.
  • The school management of each school shall work out their actual expenditure incurred under the annual charges for the period the school remained closed and recover only such genuine expenditure incurred by them.
  • The schools shall restrain themselves from increasing the fee for the year 2020-21 and adopt the same fee structure as of session 2019- 20.
  • Any parent not able to pay the school fee  may file their application along with necessary proof about their financial status, which shall be looked into by the school authority sympathetically for concession or exemption of the entire fee as the case may be. In case the grievances of the parents are not resolved, then they may approach the Regulatory Body constituted under Section 7 of Punjab Regulation of fee of Un-aided Educational Institutions Act, 2016
  • In case any school is facing a financial crunch for not having charged the increased fee for the year 2020-21, may move a representation to the District Education Officer along with proof of the same, who shall look into it and pass appropriate orders within three weeks of the receipt of such an application.

[Independent Schools’ Association Chandigarh v. State of Punjab, 2020 SCC OnLine P&H 847 , decided on 30-06-2020]

Case BriefsCOVID 19High Courts

They that sleep resemble the dead; likewise, they that drink are no other than poison eaters.

Couplet 926 of Chapter 93 titled “not drinking palm wine”

Madras High Court: A Division Bench of P.N. Prakash and B. Pugalendhi, JJ. addressed a petition with regard the legality and validity of decision of the State Government to re-open the State-owned TASMAC shops for retailing vending of liquor to public.

In the evening of 6th May, 2020, Division Bench of this Court had imposed further restrictions for vending liquor in the TASMAC outlets.

Bench in the present case observed that,

“Armed with the nod of the Division Bench, the State, like Julius Caesar, turning deaf ears to the caution of the soothsayer “Beware Ides of March”, went ahead with re-opening the TASMAC shops on 07.05.2020.”

“Unfortunately, for the State, the incidents that unfurled from 07.05.2020 as a sequel to the re-opening of the TASMAC shops, brought gloom and doom to the citizens. Tipplers in serpentine queues, throwing to wind all social distancing and mask wearing norms, thronged the TASMAC shops least mindful of the scorching May summer. Hell broke loose in some areas as could be seen from newspaper reports and social media footages.”

Further the Court observing the State’s action, also stated that,

“It is indeed sad that in a welfare State, the Government wanted to cash in on the weakness of the tipplers by enhancing Excise Duty on liquor by 15%.”

Court also referred to the below stated news items:

“08.05.2020 (Page no.3):

An 18 year old girl who attempted suicide by immolating herself after her father picked up a quarrel under the influence of alcohol, is battling for her life in hospital.

08.05.2020 (page no.4):

3 dead in alcohol induced incidents

09.05.2020 (Page no.3):

Three people were murdered in alcohol-related incidents in Tuticorin, Virudhunagar and Tirunelveli on Thursday night”.

Division Bench of the Court with its Order dated 6th May, 2020 on noting the above incidents and concerns had decided to immediately close down all the TASMAC shops till lockdown was lifted by Government.

Veera Kathiravan placed the WHO guidelines with regard to Alcohol and Home Isolation or quarantine.

Additional Advocate General submitted that WHO guideline was issued to allay the notion prevailing in some quarters the consumption of liquor will protect one from COVID-19 attack.

For the above stated guideline, bench observed that the said guideline, categorically sets out the ill-effects of consumption of alcohol during COVID-19 pandemic.

Additional Advocate General further justified the State’s action on the following grounds:

  • COVID-19 pandemic is not going to abate in the near future and therefore, people cannot be kept in domestic imprisonment indefinitely;
  • economic activities have to be resumed;
  • the Central Government itself has permitted the operation of commercial activities, including liquor sale in a phased manner;
  • the loss of revenue per day to the State exchequer works out to not less than Rs.100 crores and that revenue is needed for fighting the scourge of COVID-19;
  • illicit liquor is being brewed;
  • people of this State are patronising wine shops that are open in the neighbouring States of Andhra Pradesh and Karnataka; and
  • the policy decision of the State cannot be subject to judicial review.

For the above submission, Court stated that, they agree with the, same. Adding to this bench stated that

“on the one hand, the State wants its citizens to develop immunity by consuming Kabasura Kudineer and homeopathy medicines and on the other hand, wants to destroy the immunity by making liquor freely available to the public.”

Continuing with its observations, Court said that,

State was aware that due to lock down, the spread of COVID-19 was controlled in Chennai, but, one day’s re-opening of the Koyambedu vegetable market led to a huge spike in COVID-19 cases in the State. Perhaps, the maxim “Once bitten, twice shy”, seemingly, had little impact on the State.

Liquor shops that were opened in the neighbouring Kerala and far off Mumbai were closed down by those Governments to save human lives, but, alas, this State failed to learn any lesson.

Whatever gains we gathered, thanks to our citizens, who, unlike citizens of certain Western countries, wholeheartedly remained indoors, are bound to get dissipated with the re-opening of the TASMAC shops.

Right of the State to carry on liquor sales via TASMAC shops is not an absolute one, but only, a qualified one under Article 19(1)(g) of the Constitution of India and when that right seeks to trample the right to life guaranteed by Article 21 of the Constitution of India, the former has to give way and remain subservient to the latter.

State cannot be permitted to hide behind the cloak of policy decision when its action is likely to kill people in droves.

A tippler may claim to have a right of self destruction, but, in that process, he cannot destroy others. It is like a person committing self immolation hugging his neighbour.

Not agreeing with State Government’s decision of re-opening the TASMAC shops, Court continued to say that,

When the Government had rightly prohibited entry into places of worship during the lock down period, its decision to allow tipplers to congregate before TASMAC shops, is indubitably antithetical.

Policy decision of the Government is not completely immune from judicial review, especially where it seeks to brazenly violate the fundamental right of the citizens guaranteed by Article 21 of the Constitution of India.

Thus, in complete agreement with the order of Division bench of the court passed on 8th May, 2020, it is directed to close down the TASMAC shops in the Same lines.[A. Bonyface v. Govt. of T.N., 2020 SCC OnLine Mad 983 , decided on 11-05-2020]

COVID 19Hot Off The PressNews

Ministry of Home Affairs (MHA) Order No. 40—3/2020—DM—1(A) dated 29th April, 2020 and 1st May, 2020, had allowed movement of migrant workers, pilgrims, tourists, students and other persons who are stranded at different places due to lockdown.

In view of the above, MHA clarified that the previous MHA orders are meant to facilitate movement of such stranded persons, who had moved from their native places/ workplaces, just before the lockdown period, but could not return to their native places/ workplaces on account of restrictions placed on movement of persons and vehicles as part of lockdown measures. The facilitation envisaged in the aforesaid orders is meant for such distressed persons, but does not extend to those categories of persons, who are otherwise residing normally at places, other than the native places for purposes of work etc., and who wish to Visit their native places in normal course.

*Please click the following link to access the official letter:

LETTER


Ministry of Home Affairs

[Letter dt. 03-05-2020]

COVID 19Hot Off The PressNews

After a comprehensive review of the Lockdown measures to contain the COVID-19 situation in the country, Union Ministry of Home Affairs (MHA), issued an Order yesterday, to further extend the Lockdown for a further period of two weeks w.e.f. May 4, 2020.

In order to remove confusion regarding movement of persons and vehicles in orange zones (please refer the concerned paragraph on permitted activities in Orange Zones given in https://pib.gov.in/PressReleasePage.aspx?PRID=1620095), this clarification has been issued, as below:

In the Orange Zones, in addition to the activities prohibited throughout the country, inter-district and intra-district plying of buses remains prohibited.

Two other activities have been allowed with restrictions:

  • Taxis and cab aggregators are permitted, with one driver and two passengers only.
  • Inter-district movement of individuals and vehicles is allowed, only for permitted activities, with maximum two passengers, besides the driver, in four wheeler vehicles.

All other activities are allowed in the Orange Zones, without any restrictions.

However, States/UTs based on their assessment and priorities, may choose to permit a lesser number of activities.


Ministry of Home Affairs

[Press Release dt. 02-05-2020]

Source: PIB]

Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench of Abhay S. Oka, CJ and B.V. Nagarathna, J. dismissed a petition on the ground that that the same was not in public interest, wherein a direction was sought to open the wine shops in State Karnataka for a few hours during the lockdown period.

Petition has been filed to issue a writ of mandamus or any other appropriate direct the respondents to keep open the wine shops in the State of Karnataka at least for few hours in a day, if not for the whole day and etc.

The second prayer issued by the petitioner was that of providing alcohol in wine shops in limited quantities to the public during lockdown period.

Bench stated that when it expressed the view that there is no public interest involved in the present petition especially when large population is deprived of even elementary facility of food and shelter, petition Dr Vinod G. Kulkarni paid a sum of Rs 10,000 by way of donation to the Chief Minister’s Relief Fund COVID-19.

Petitioner also stated that he would not press the writ petition.

Bench thus dismissed the petition and made it clear that no public interest was involved in the same. [Late G.B. Kulkarni Memorial v. State of Karnataka,  2020 SCC OnLine Kar 439 , decided on 07-04-2020]

Case BriefsCOVID 19High Courts

Karnataka High Court: A Division Bench comprising of Abhay Shreeniwas Oka, CJ and B.V. Nagarathna, J. held a special sitting of the Court on 26-03-2020.

Court stated that on receiving email’s inviting attention of  the Court with regard to lack of food security to daily wage workers, migrant workers and homeless persons during the lockdown period.

In Court’s opinion the stated grievances require urgent attention of the State Government.

Bench further states that the grievances should be looked into by the State Government.

Adding to the above, Court listed the matter before this Bench on 30-03-2020 through video conferencing.

[Mohammed Arif Jameel v. Union of India,  2020 SCC OnLine Kar 390, decided on 26-03-2020]