Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., directs railways to allow Advocates to travel by local trains for physical hearings on an “experimental basis”.

Possibility as to whether lawyers who are appearing in the High Court before the Benches which are taking physical hearing, permission to travel by local trains to be discussed.

Advocate General, as well as Additional Solicitor General, had fairly consented to consider the said request on an experimental basis.

Advocate General after taking instructions has placed on record a brief note which would set out the arrangements that can be made for lawyers who are attending the physical hearing before the High Court.

Further, Additional Solicitor General has also taken instructions from the railways and would state that in principle, the railways are also agreeable for this arrangement to be set into motion as suggested on behalf of the State.

Bench stated that in view of the present situation Court can only consider the request in regard to the advocates and no one else.

Accordingly, the Court accepts the arrangement as suggested on behalf of the State and as agreed on behalf of the railways which would be in effect from 18-09-2020.

In view of the above, Court passed the following order:

  • Advocate concerned intends to physically appear before the Benches of this Court at its principal seat at Mumbai shall apply to the designated Registrar of the High Court seeking a day’s pass relating to the particular date only on which his/her matter is listed for hearing before one of the four Benches of this High Court.
  • The designated Registrar only after confirming the correctness of the claim so made in the application in terms of the present arrangement via email will issue a certification of the requirement for a particular day to the advocate concerned.
  • Upon receipt of such certification from the designated Registrar, the advocate concerned will approach the railway authorities to obtain appropriate pass/document for travel or ticket permitting him/her to avail the local train services, for the particular day for which travel permission is required.
  • Railway authorities after verifying the pass so issued will issue appropriate travel documents/tickets etc., as the case may be, permitting travel by local train services to the advocate for the particular day.

The above-stated arrangement will be available to the advocate only who satisfies all the above conditions.

Bench states that in case the certification issued by the Registrar is misused, it would be open for the Bar Council of Maharashtra and Goa to take appropriate actions.

All the proceedings adjourned to 06-08-2020. [Chirag Chanani v. Union of India, 2020 SCC OnLine Bom 929, decided on 15-09-2020]

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of S.J. Kathawalla and Madhav Jamdar, JJ., reiterated that in times of this peculiar pandemic, it is the duty of every right-thinking person to balance their religious duties with public duty and their responsibility towards the rest of mankind.

Petitioner sought directions against respondents to allow the members of the Jain community to visit the Jain Temples and to perform prayers.

Petitioners moved for urgent reliefs to the extent that during the holy period of ‘Paryushan’ they should be permitted to visit Jain Temples.

Court by its order dated 11-08-2020 directed the Secretary Disaster Management to consider the representation of members of the Jain Communityore particularly the submission of the petitioners that if the malls and market places, barber shops, spas, salons, beauty parlours, liquor shops, etc. can be operated with certain restrictions, why the Jain devotees should not be allowed to visit the places of worship to offer prayers and/or to perform rituals with similar restrictions.

Secretary Disaster Management stated that State of Maharashtra is amongst the most affected States in India and has been adopting various precautionary measures to contain the pandemic.

Further, it was added that the Government of India has in all its orders, consistently and consciously mentioned that, “States/UTs based on their assessment of the situation, may prohibit certain activities outside the containment zones or impose such restrictions as deemed necessary.”

Prevailing position in the State of Maharashtra demands a conscious policy decision of closure of all worship places and not to permit any religious congregations.

Hence, taking into consideration the prevailing circumstances and situation in the State of Maharashtra acceding to the petitioner’s request will not be possible.

High Court in view of the facts and submission of the Secretary Disaster Management stated that the members of the public should appreciate that the Centre as well as the State Government, who despite being over burdened, have left no stone unturned in taking all possible measures to safeguard the public health of its citizens, and that the said restrictions are imposed in their larger interest.

However, the bench did not dispose of the petition and placed the same for directions on 07-09-2020. [Ankit Hirji Vora v. UOI, OS-WP-LD-VC-259 of 2020, decided on 13-08-2020]

Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of S.J. Kathawalla and R.I. Chagla, JJ., quashed and set aside the unreasonable restriction placed by the State of Maharashtra on prohibiting the actors, crew members, etc. who are above the age of 65 years from being present at the site of the shooting of films/television series/Over The Top Media (OTT) in light of the same being discriminatory.

Petitioner is an actor by profession who had challenged the condition imposed by the Government of Maharashtra’s Resolution according to which persons above the age of 65 years are prohibited from remaining present at the site of the shooting of films/television series/Over The Top Media (OTT).

Discriminatory and Arbitrary

The government resolution is discriminatory, arbitrary and violative of Article 14 of the Constitution of India because at the time the same was issued, Central, as well as the Maharashtra Government, had relaxed the general prohibition on the movement of persons above the age of 65 years.

Right to Carry on Trade and Occupation

As against this, a prohibition on the movement of persons above the age of 65 years continued to operate in the film and television industry. It is also submitted that the impugned condition is an unreasonable restriction on the petitioners’ right to carry on their trade and occupation, as also the impugned condition deprives the petitioner of his right to earn a livelihood with dignity.

Government Pleader for the Respondent State, Purnima H. Kantharia submitted that the Government of Maharashtra’s Resolution is based on Centres’ order passed under the DM Act.

Further, he added that, the restrictions are in the interest of persons with low or weak immunity as the disease is easily communicable.

The restriction is not absolute. Persons above the age of 65 years may work from home, over video conferencing, email, video sharing etc.

Until the Central and State Governments relax the guidelines, the Respondent is bound to strictly implement the aforesaid Orders issued under the DM Act, as the MHA Orders specifically provide for strict enforcement of the Lockdown Orders by the respective State Governments.

“…though the Impugned Condition reads as a prohibition, no coercive action will be taken against anyone above the age of 65 years who chooses to remain present at the site of the shooting of films/television series / OTT. The prohibition is issued in the interest of the health and safety of persons who are above the age of 65 years and is to be read as such.”

Analysis and Decision

Bench while analysing the facts and circumstances of the case, started while stating that Sections 38 and 39 of the DM Act empower the State Government to take measures to deal with the disaster at hand, which in this case is the Covid-19 pandemic.

Keeping the above in mind and being fully conscious of the hardship and risks posed by the Covid-19 pandemic, Court first considered the challenge to the impugned condition under Article 14 of the Constitution of India.

Intelligible Differentia

In Court’s opinion, impugned condition was not based on any intelligible differentia.

Whilst there may be a nexus with the object sought to be achieved, i.e. to protect vulnerable people from the Covid-19 pandemic, there is no intelligible differentia between persons who are 65 years of age or above in the cast/crew of films and TV shootings on the one hand and persons who are 65 years of age or above in other sectors and services, permitted under prevailing lockdown orders.

Thus, there is discrimination in the disparate treatment of persons who are 65 years of age or above in the film or television industry and in the other permitted sectors and permitted activities and no explanation on the said aspect has been given by the State Government.

Hence, Impugned Condition, therefore, cannot be sustained in view of the well-settled principles enunciated under Article 14 of the Constitution of India.

Further, the said impugned condition also failed to take into consideration the relevant material, namely the relaxation contained in orders dated 30th May 2020 and 31st May 2020 issued by MHA and the Government of Maharashtra respectively, which reads as an advisory for persons above the age of 65 years.

Impugned Condition in light of Article 21 of the Constitution

Citing the decision of Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545, it was stated that the Righto Earn a livelihood and the Right to Live with Dignity are well-established facets of the Right to Life guaranteed under Article 21 of the Constitution.

Court added that coming to the conclusion that the impugned condition cannot be sustained on account of it being discriminatory and arbitrary, stated 

“we are satisfied that the absolute prohibition as regards persons above the age of 65 years who earn their livelihood from the film industry (which is allowed to operate), is a measure that violates the Petitioner’s right to live with dignity under Article 21 of the Constitution and the restriction imposed by the Impugned Condition in relation to a specific sector or industry that is now allowed to operate, cannot constitute a valid procedure established by law.”

Hence, on perusal of the above observations, the Court held that if there are no general prohibitions on persons above the age of 65 years from working or practicing their trade in those sectors and businesses which are allowed to operate, an age-based prohibition in only one industry namely the film industry/television / OTT, without any material to support its differential classification, would constitute an unreasonable restriction.

The stated impugned condition was quashed and set aside in view of being an unreasonable restriction. [Pramod Pandey v. State of Maharashtra,  2020 SCC OnLine Bom 846, decided on 07-08-2020]


Also Read:

Bom HC | How a physically fit person of 65 years age or above is expected to live a dignified life if not allowed to go out & earn livelihood? Maharashtra Govt to respond

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ, and A.S. Gadkari, JJ., deferred the hearing for PIL’s filed in view of the unnatural death of Sushant Singh Rajput, a film actor.

In the present two Public Interest Litigations, it has been sought that CBI should be entrusted with the investigation into the unnatural death of a film actor, Sushant Singh Rajput.

Advocate General for the State, A.A. Kumbhakoni informed the Court that a petition with similar relief was moved before the Supreme Court, but the same was dismissed.

The petitioner on being asked for the copy of the petition stated answered in negative and added that the Supreme Court while dismissing the petition granted liberty to approach this Court.

Another significant point that the Court noted was the Supreme Court’s order dated 5-08-2020 wherein a status report has been called for from the State of Maharashtra in regard to the stage of investigation by Mumbai Police.

Hence, the Advocate General for the State states that the Court may not pass any order on the present petition and may await the Supreme Court’s decision.

Additional Solicitor General, Anil Singh submitted that on acceptance of the request of the deceased father, the CBI has already registered an FIR, inter alia, under Section 306 of the Penal Code, 1860. He has also questioned the approach of the Mumbai Police in quarantining an IPS officer of the Bihar cadre, who had come to Mumbai for the purpose of ascertaining facts, although four other officers of Bihar Police who had earlier visited Mumbai were not meted out such treatment.

Hence in view of the above stated, Court while deferring the hearing till 21-08-2020, stated that CBI has registered an FIR and it would not be appropriate, at this stage, to express any opinion either way.

It would be just and proper to await the orders of the Supreme Court in the pending Transfer Petition, referred to above. [Priyanka Tibrewal v. UOI, 2020 SCC OnLine Bom 848, decided on 07-08-2020]


Also Read:

Sushant Singh Rajput death case| SC asks Mumbai Police to submit status of investigation so far; says truth must come out

Case BriefsHigh Courts

Bombay High Court:  A Division Bench of Dipankar Datta, CJ and Sarang V. Kotwal, J., took up a matter highlighting the concern regarding the inflated charges for Personal Protective Equipment Kits (PPE) by private hospitals and nursing homes.

Petitioner raised the concern that in view of the pandemic, private hospitals and nursing homes have been charging for Personal Protective Equipment Kits on a cost more than the procurement costs.

In view of the above stated concern, petitioner sought a direction for imposing a cap on the prices of PPE Kits charged to COVID/NON-COVID patients in private hospitals and nursing homes.

P.P. Kakade, Government Pleader a/w Nisha Mehra, AGP for State.

Ish Jain a/w Kiran Jain a/w Amruta Thakur for respondent 4.

Therefore, Court directed the parties to file affidavit stating their responses after which on 07-08-2020, the present PIL will be taken up for further consideration. [Abhijit K. Mangade v. State of Maharashtra, 2020 SCC OnLine Bom 827, decided on 28-07-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.J. Kathawalla and R.I Chagla, JJ., asked State of Maharashtra to file their response on the following:

“how a physically fit persons who is 65 years or above is expected to live a dignified life if he is not allowed to go out and earn his livelihood?”

Petitioner sought quashment of the condition appearing in Government Guidelines dated 30-05-2020 stating that “Any cast/crew members above the age of 65 years will not be allowed at the site.”

Petitioner submitted that he does not have any other source of livelihood and is solely dependent on such jobs in the film studios. Though he is physically fit, he is not allowed to go to the studios and participate in shooting for earning his livelihood.

He additionally submits that if he is prevented from participating in any of the activities during the shootings, he won’t be able to survive with dignity and self respect.

Advocate appearing for the State had informed the Court that the guidelines also provides that when possible, castings should be done remotely via Facetime, Zoom, Skype, etc.

“…actors performing small roles are required to go to the studios and request for work to enable them to have their two meals, and no Producer/Director is going to shoot their role via Facetime, Zoom, Skype etc.”

Bench in view of the above, directed the respondents to interalia file its affidavit explaining how a physically fit persons who is 65 years or above is expected to live a dignified life if he is not allowed to go out and earn his livelihood.

Following are the questions on which the respondents shall set out their response in the affidavit:

Whether any data/reports/statistics were taken into consideration before issuing the impugned Guidelines restraining any cast/crew members above the age of 65 years from attending the studios/shooting sites;

Whether a similar rule is made applicable to individuals who are 65 years and above and are travelling by trains/buses/aircrafts etc.;

Whether a similar rule is made applicable to the employers/staff who are currently attending shops/private offices;

Whether a similar rule is made applicable to the individuals (approximately 30) who are allowed to attend funerals or marriage reception/s etc.

Matter to be listed on 24-07-2020. [Pramod Pandey v. State of Maharashtra, 2020 SCC OnLine Bom 818 , decided on 21-07-2020]

Hot Off The PressNews

Allowance of Rs 50,000 annually for spectacles of Bombay High Court Judges approved by Maharashtra Government.

Maharashtra Government’s resolution dated 10th July, 2020 approved an annual sanction of Rs 50,000 for Judges of Bombay High Court to buy spectacles.

The said allowance will cover the cost and maintenance of spectacles for the spouses of the judges and the family members dependent on them.


Maharashtra_Government_Resolution_on_allowance_for_Judges

Hot Off The PressNews

G.S.R. 873(E).—The following Proclamation issued by the President of India is published for General information:—

PROCLAMATION

In exercise of the powers conferred by clause (2) of Article 356 of the Constitution, I, Ram Nath Kovind, President of India hereby revoke the Proclamation issued by me under the said article on the 12th day of November, 2019, in relation to the State of Maharashtra with effect from the 23rd day of November, 2019.


Ministry of Home Affairs

[Notification dt. 23-11-2019]