Harsha Asnani
The outbreak of COVID-19 pandemic has resulted in shut down of various activities, however the Courts have not shut down their doors of justice and the Rule of law is being upheld even in the times of pandemic. The present article attempts to summarise some of the orders passed by Supreme Court and High Courts during the fourth phase of lockdown. This article forms part of a series where we analyse the judicial activities during the different phases of lockdown.
Identity of the person who test positive to COVID-19 and are under treatment in Government/other Hospitals or are under quarantine centres should not be disclosed publicly
Case Number: Writ Petition (C) No. 12430 of 2020
Forum: Orissa High Court
Date of Order: 28.05.2020
Challenge in brief: This writ petition was preferred inter alia alleging that identity of persons who test positive for Coronavirus (COVID-19) are being publicized/disclosed in intra-departmental communications and various media platforms including social media. It was argued that such disclosure is in clear contradiction to the advisory issued by the Government of India in this regard.
Order: The Court directed the State authorities to ensure that identity of any person, who is admitted to COVID centres viz. any Government Hospital/private Hospital or any Quarantine centre in the State, is not disclosed/publicized either in any intra-departmental communication or in any media platform including social media.
Sufficient checks and vigilance to be maintained at the night shelters, being run and managed by DUSIB in the NCT of Delhi to prevent spread of COVID-19
Name of the case: Karan Seth v. U.O.I and Ors.
Case Number: - W.P. (C.) 3032/2020 & C.M. No. 10552/2020
Forum: Delhi High Court
Date of Order: 27.05.2020
Challenge in brief: The Petitioner had raised concerns with regard to the improper maintenance and lack of essential facilities at night shelters being run by DUSIB within the precincts of Vishram Sadan, AIIMS. The Petitioner had also highlighted the lack of quarantine and testing measures, denial of admission and treatment at AIIMS for the people residing in such night shelters, despite the fact that their co-occupants were tested positive.
Order: The Court directed that the Respondent Authorities shall ensure that all such occupants of the night shelter, who are found COVID-19 positive, are quarantined so that they do not infect others. On the aspect of availability of medical facilities of AIIMS to such persons, it was directed that the both AIIMS and the GNCTD shall nominate their respective Nodal Officers, whose contact details, including email ids and mobile phone numbers should be exchanged between them. Any communication between AIIMS and GNCTD in relation to COVID-19 patients should be addressed to the Nodal Officers of the other party to ensure that all COVID-19 patients are attended to.
It is the duty of the principal employer to provide necessary protective gear to the contractual workers.
Name of the case: Samaj Samata Kamgaar Sangh v. Navi Mumbai Municipal Corporation and Ors.
Case Number: AD-HOC NO. WP-LD-VC-46 OF 2020
Forum: Bombay High Court
Date of Order: 27.05.2020
Challenge in brief: The Petitioner Union has filed a Writ Petition on behalf of the 6277 ‘contract workers’ (‘Kamgaars’) employed with the Respondent No. 1 - Navi Mumbai Municipal Corporation. It is the case of the Petitioner that the said 6277 Kamgaars are not provided with any protective material/gear to protect them from the COVID-19 virus and also adequate water is not being provided for washing their hands and feet after they carry out their duties. The Petitioner also contended that vide a circular dated 7th April, 2020, the workers and employees of the Corporation, who were performing COVID duties, were sanctioned a sum of Rs.300/- as the daily allowance. However, such benefit was not provided for the Kamgaars.
Order: The Hon’ble Court opined that the risk taken by the Kamgaars in carrying out COVID-19 related duties for the Corporation cannot be differentiated / distinguished on the ground that they are not directly employed with the Corporation and are performing such functions through contractors. Differentiating between the two and not providing them with essential protective gear shall be extremely unfair and unjust. It was further directed that the Corporation shall certify the names of the Kamgaars involved in the COVID-19 related duties and forward a list of the same to the Advocate for the Petitioner Sangh / Union. The payment of special allowance to the certified contract workers shall be made on the basis of their attendance. For this purpose, the contractors shall provide the details of such certified contract workers at the end of each month (starting from May, 2020) along with their attendance to the Corporation for payment of the allowance to the contractors, who in turn shall disburse the same amongst the entitled workers. The insurance claims would be certified by the Corporation in respect of all contractual workers working in health care facilities, irrespective of numbers, provided they are in direct contact and /or care of COVID-19 patients.
Hospitals are at liberty to use the amounts lying in the “Indigent Patients Fund” to treat the indigent patients suffering from COVID-19 and / or from any other sickness
Name of the case: Grant Medical Foundation Ruby Hall Clinic, Pune v. State of Maharashtra and Ors.
Case Number: - WP-LD-VC-28-2020
Forum: Bombay High Court
Date of Order: 22.05.2020
Challenge in brief: .The Petitioner had filed the Writ Petition seeking directions against the State Government to allow the Petitioner Trust to utilize the money available in the bank account, maintained for implementation of the IPF Scheme by the Petitioner, for treatment of COVID-19 patients in the Petitioner hospital. It was argued that income sources of the Petitioner Trust have dried up, the salaries of the staff and resident doctors running into lacs of rupees have to be borne by the Petitioner Trust, hence it is expedient that such fund be allowed to be utilised for meeting the operation cost of the hospital.
Order: The Court opined that the Petitioner Trust is always free to use the amounts lying in the “Indigent Patients Fund” to treat the indigent patients suffering from COVID-19 and / or from any other sickness, in consonance with the Scheme formulated under Section 41AA of the Bombay Public Act, 1950. However, after assessing the financial position of the Petitioner, the Hon’ble Court denied its request to use the funds lying in the IPF scheme for other purpose.
Doctrine of frustration under s. 56 of the Contract Act is not applicable to Lease agreements
Name of the case: Ramanand & Ors. v. Dr. Girish Soni & Anr.
Case Number: - CM APPL. 10848/2020
Forum: Delhi High Court
Date of Order: 21.05.2020
Challenge in brief: The question involved in the present case was as to whether the imposition of lockdown would entitle tenants to claim waiver or exemption from payment of rent or suspension of rent.
Order: The Court opined that the temporary non-use of premises due to the lockdown which was announced due to the COVID-19 outbreak cannot be construed as rendering the lease void under Section 108(B)(e) of the Transfer of Property Act. The tenant also cannot avoid payment of rent in view of Section 108(B)(l). Section 56 of the Indian Contract Act has no application in matters related to Lease Agreement
The absence of a contract or a contractual stipulation, the tenant may generally seek suspension of rent by invoking the equitable jurisdiction of the Court due to temporary non-use of the premises. The question as to whether the suspension of rent ought to be granted or not would depend upon the facts and circumstances of each case depending on factors such as nature of the property, financial and social status of the property, amount of rent, contractual conditions, protection under executive order(s).
Private persons granted liberty to provide suggestions to deal with the COVID-19 pandemic
Name of the case: Mehrwan Farshed v. Union of India &Ors
Case Number: - LD-VC-JS-PIL- 10 OF 2020
Forum: Bombay High Court
Date of Order: 15.05.2020
Challenge in brief: Vide a batch of PIL Petitions, the Petitioners have raised common issues related to lack of proper treatment for COVID and sought for appropriate directions from the Court. Some of these issues include refusal of treatment in Government as well as Private Hospitals leading to death,; inordinate waiting times for routine medical examinations; lack of availability of medical facilities for non-COVID patients, closure of major hospitals and nursing homes in the city of Mumbai due to spread of COVID etc.
Order: Having regard to the havoc wreaked by COVID and in the absence of any therapeutic cure of the disease, the Court opined that every possible option ought to be explored so that the suffering of the people at large can be minimised to the extent possible. Therefore, the petitioners as well as the private institutions were granted liberty to provide their suggestions to the State Government and Municipal Corporation that would go a long way to ensure better health conditions for Covid as well as non-COVID patients.
No evidence that the burial of cadaver of a COVID-19 infected individual is likely to spread more infection
Name of the case: Pradeep Ghandy & Ors v. State of Maharashtra & Ors
Case Number: - LD-VC-46 OF 2020
Forum: Bombay High Court
Date of Order: 22.05.2020
Challenge in brief: The Petitioners had approached the Court seeking directions to be issued to the State of Maharashtra and the Municipal Corporations for restraining them from allowing burial of the cadaver of any COVID-19 infected individual in the respective burial grounds. It was argued that the burial of the cadaver of a COVID-19 infected individual in a kabrasthan in the vicinity of their residences is likely to endanger their lives as well as others residing nearby
Order: The Hon’ble Court analysed the “interim guidance” of the WHO and guidelines of the Government of India on the question of management of cadavers of suspected/confirmed COVID-19 infected individuals and opined that there is no evidence of persons having developed infection of COVID-19 from exposure to the cadaver of a suspected/confirmed COVID-19 individual. It was observed that they provide for sufficient precautionary measures for safeguard from exposing the near and dear ones of the deceased who would choose to assemble at the kabrasthan/cemetery for the last rites. It was held that municipal authorities are empowered with the discretion to demarcate cemetery plots as required for the burial of persons.
State Government to ensure testing arrangements and quarantine centres for migrant persons entering the Indian borders
Name of the case: Sachdanand Dabral v. Union of India & Ors
Case Number: - Writ Petition (PIL) No. 58 of 2020
Forum: Uttarakhand High Court
Date of Order: 20.05.2020
Challenge in brief: The present writ petition was filed raising concerns over the insufficiency of efforts which are being made by the State Authorities to detect and quarantine infected persons amongst the returnees to the States, particularly at the borders of Uttarakhand.
Order: Keeping in mind the rising number of individuals crossing the borders, the Court directed the State Government to ensure that every possible effort is taken to establish and make functional quarantine centers. In these quarantine centers, all such returnees who are coming from red zones shall be kept for a period of one week. Out of these quarantined persons, those who have necessary symptoms, as per the guidelines of ICMR, shall be tested for RT-PCR. Further, it was directed that the rapid test kit shall be procured immediately and testing be done by this method on experiment basis at the border points.
No fare either by train or by bus shall be charged from any migrant workers
Name of the case: In Re : Problems and miseries of migrant labourers
Case Number: - Suo Motu Writ Petition (Civil) No(s). 6/2020
Forum: Supreme Court
Date of Order: 28.05.2020
Challenge in brief: The captioned writ petition was filed raising concerns over several difficulties which are being faced by the migrant workers in the process of registration and and transportation to their native places and the failure in providing basic amenities like water and food during their travel.
Order: Keeping in view various difficulties faced by the migrant workers in travelling to their respective hometowns, the Court ordered that the no fare either by train or by bus shall be charged from any migrant workers. Further, the migrant workers who are stranded at different places in the country shall be provided food free of cost by the concerned originating States / Union Territories at different places which shall be publicized and notified to them during the period they are waiting for their turn to board the train or bus. The respective State Governments were also directed to simplify and speed up the process of registration of migrant workers and also provide help-desks for registration at the places where they are stranded. The receiving State, after the migrant workers reach his native place, were directed to provide transport, health screening and other facilities free of cost.