Supreme Court Orders In Matters Related To COVID-19
Muneeb Rashid Malik
27 Dec 2020 1:32 PM GMT
The Supreme Court of India has passed many judgments and orders in the matters related to COVID-19, in the year 2020. In this write-up, the important pronouncements are briefly discussed. In Re: Contagion of COVID-19 Virus in Prisons, Suo Moto Writ Petition (C) No.1/2020 (Dated 23/03/2020). CONSTITUTION OF HIGH-POWERED COMMITTEE IN EACH STATE/UNION TERRITORY FOR RELEASE OF PRISONERS...
The Supreme Court of India has passed many judgments and orders in the matters related to COVID-19, in the year 2020. In this write-up, the important pronouncements are briefly discussed.
CONSTITUTION OF HIGH-POWERED COMMITTEE IN EACH STATE/UNION TERRITORY FOR RELEASE OF PRISONERS ON PAROLE OR INTERIM BAIL.
A Bench comprising the Chief Justice SA Bobde, Justices L. Nageswara Rao and Justice Surya Kant directed that prisons must ensure maximum possible distancing among the prisoners including undertrials. The bench also took into consideration the possibility of outside transmission and directed that the physical presence of all the undertrial prisoners before the Courts must be stopped forthwith and recourse to video conferencing must be taken for all purposes. The bench also directed that the transfer of prisoners from one prison to another for routine reasons must not be resorted except for decongestion to ensure social distancing and medical assistance to an ill prisoner and there should not be any delay in shifting sick person to a Nodal Medical Institution in case of any possibility of infection is seen. The bench further directed that each State/Union Territory shall constitute a High-Powered Committee comprising of Chairman of the State Legal Services Committee, the Principal Secretary (Home/Prison), Director General of Prison(s), to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. The bench suggested that each State/Union Territory could consider the release of prisoners who have been convicted or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum.
DIRECTIONS FOR THE INTEREST OF CHILDREN WHO FALL WITHIN THE AMBIT OF JUVENILE JUSTICE (CARE & PROTECTION OF CHILDREN ACT), 2015.
A Bench of Justices L. Nageswara Rao and Deepak Gupta issued a slew of directions to prevent the spread of the virus to Child Care Institutions (CCIs) including children in need of care and protection and children in conflict with the law in Observation Homes and children in foster and kinship care. The Child Welfare Committees were directed to monitor cases telephonically for children who have been sent back to their families and coordinate through the District Child Protection Committees and Foster Care & Adoption Committees and establish online help desks and support systems for queries at the state level for children and staff in CCIs. It was also directed to the Juvenile Justice Boards and Children Courts to take measures for organizing online video sessions for conducting inquiries and to consider taking steps to release children alleged to be in conflict with law, residing in Observation Homes, on bail unless there are clear and valid reasons for the application of the proviso to Section 12, JJ Act, 2015. It was further directed that video conferencing or online sittings be held to prevent contact for speedy disposal of cases. It was directed to the Governments to take measures to work with Persons in Charge of CCIs and District Child Protection Units to plan staffing rotations or schedules to reduce in-person interaction by CCI staff, ensuring diligent performance of all government functionaries and take strict action against any dereliction of duty as per Rule 66(1) of Juvenile Justice Model Rules, 2016. It was also directed to ensure adequate budgetary allocation to meet the costs that are likely to arise for the effective management of the pandemic. It was directed to the CCIs to take necessary steps to practice, promote and demonstrate positive hygiene behaviours and monitor their uptake, conduct regular screening of children lodged in institutions and follow Health Referral System.
GUIDELINES FOR COURT FUNCTIONING THROUGH VIDEO CONFERENCING DURING COVID-19 PANDEMIC.
A Bench comprising Hon'ble the Chief Justice S.A. Bobde and Justices D.Y. Chandrachud and L.Nageswara Rao directed that all measures shall be taken by the Supreme Court and by the High Courts to reduce the need for the physical presence of all stakeholders within court premises and to secure the functioning of courts in consonance with social distancing guidelines. It was directed that the Supreme Court of India and all High Courts are authorized to adopt measures required to ensure the robust functioning of the judicial system through the use of video conferencing technologies. It was directed that the District Courts in each State shall adopt the mode of Video Conferencing prescribed by the concerned High Court and the Court shall duly notify and make available the facilities for video conferencing for such litigants who do not have the means or access to video conferencing facilities. It was further directed that video conferencing shall be mainly employed for hearing arguments whether at the trial stage or at the appellate stage and the presiding officer shall have the power to restrict entry of persons into the court room.
CONDUCT OF COVID-19 TESTS SHOULD BE DONE FREE OF COST FOR THOSE ELIGIBLE UNDER AYUSHMAN BHARAT YOJANA.
A Bench of Justices Ashok Bhushan and S. Ravindra Bhat directed that free testing for COVID-19 shall be carried out for persons eligible under Ayushman Bharat Pradhan Mantri Jan Aarogya Yojana and any other category of economically weaker sections of the society. It was also directed that the Ministry of Health and Family Welfare may consider as to whether any other categories of the weaker sections of the society e.g., workers belonging to low-income groups in the informal sectors, beneficiaries of Direct Benefit Transfer, etc. were also eligible for the benefit of free testing and the Bench suggested issuing of appropriate guideline in this regard.
PROBLEMS AND MISERIES OF MIGRANT LABOURERS DURING COVID-19 PANDEMIC.
A Bench of Justices Ashok Bhushan, Sanjay Kishan Kaul, and M. R. Shah passed a slew of directions in the suo moto case taken on the crisis of migrant workers. The Bench directed that all the States/Union Territories shall 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 from today. In event of any additional demand, in addition to demand of 171 Shramik trains, railway shall provide Shramik trains within a period of 24 hours as submitted by learned Solicitor General to facilitate the return journey of migrant workers. The Central Government may give details of all schemes which can be availed by migrant workers who have returned to their native places. All States and Union Territories shall also give details of all schemes which are current in the State, benefit of which can be taken by the migrant labourers including different schemes for providing employment. The State shall establish counselling centres, help desk at block and district level to provide all necessary information regarding schemes of the Government and to extend helping hand to migrant labourers to identify avenues of employment and benefits which can be availed by them under the different schemes. The details of all migrant labourers, who have reached their native places, shall be maintained with details of their skill, nature of employment, earlier place of employment. The list of migrant labourers shall be maintained village wise, block wise and district wise to facilitate the administration to extend benefit of different schemes which may be applicable to such migrant workers. The counselling centres, established, shall also provide necessary information by extending helping hand to those migrant workers who have returned to their native places and who want to return to their places of employment. All concerned States/UTs to consider withdrawal of prosecution/complaints under Section 51 of Disaster Management Act and other related offences lodged against the migrant labourers who alleged to have violated measures of Lockdown by moving on roads during the period of Lockdown enforced under Disaster Management Act, 2005.
STATES TO SUPPLY THE COVID-19 TEST RESULTS TO THE PATIENT OR HIS RELATIVES.
A Bench of Justices Ashok Bhushan, Sanjay Kishan Kaul and MR Shah directed that the States and all concerned shall supply the COVID-19 test results to the patient or his relatives and the hospital. The Bench also directed the Union of India, Ministry of Home Affairs to issue appropriate directions in exercise of power under Disaster Management Act, 2005 to all States/Union Territories to uniformly follow the revised discharge policy with regard to discharge of different categories of patients as categorised in the revised discharge policy. The Union of India may issue appropriate guidelines/directions to all the States/Union Territories with regard to prescribing reasonable rates of various Covid related facilities/test etc., which need to be uniformly followed by all concerned.
CBSE AND ICSE EXAMINATIONS CANCELLED.
A Bench of Justices AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna accepted the draft notification issued by the Central Board of Secondary Examination regarding the assessment scheme for the cancelled examinations of Class X and XII exams. The CBSE filed an affidavit in the Court explaining the assessment scheme. The CISCE also told the bench that the ICSE exams have also been cancelled and that they will publish the assessment scheme. Taking note of the affidavits of CBSE and ICSE, the Bench disposed of the petitions, and also similar cases pending in High Courts.
NO TRANSFER OF FUNDS COLLECTED IN THE PM CARES FUND TO THE NDRF.
A Bench of Justices Ashok Bhushan, R. Subhash Reddy and MR Shah refused to transfer all the funds collected in the PM CARES Fund to the NDRF. The NDRF and PM CARES Fund are two entirely different funds with different object and purpose. The Bench held that the Union of India can very well utilize the NDRF for providing assistance in the fight of COVID-19 pandemic by way of releasing fund on the request of the States as per new guidelines. Any contribution, grant of any individual or institution is not prohibited to be credited into the NDRF and it is still open for any person or institution to make contribution to the NDRF in terms of Section 46(1)(b) of the Act, 2005. The contribution by any person or by any institution in PM CARES Fund is voluntary and it is open for any person or institution to make contribution to the PM CARES Fund. The funds collected in the PM CARES Fund are entirely different funds which are funds of a public charitable trust and there is no occasion for issuing any direction to transfer the said funds to the NDRF.
Gajendra Sharma v. Union of India, Writ Petition(s) (Civil) No(s). 825/2020 (Dated03/09/2020).
ACCOUNTS NOT CLASSIFIED AS NPAs AS ON 31ST AUGUST, 2020 NOT TO BE DECLARED NPAs TILL FURTHER ORDERS.
A Bench of Justices Ashok Bhushan, R. Subhash Reddy and MR Shah protected those accounts from being declared as Non-performing Assets (NPAs) which were not classified as NPAs on August 31, till further orders. The Bench was hearing a plea seeking extension of the COVID-19 induced loan moratorium & waiver of accruing interest. The Bench has reserved its judgment in the matter.
Gujarat Mazdoor Sabha vs. State of Gujarat, Writ Petition (Civil) No. 708 of 2020(Dated 01/10/2020).
WORKERS' RIGHT TO LIFE CANNOT BE DEEMED CONTINGENT ON THE MERCY OF THEIR EMPLOYER OR STATE.
A Bench of Justices DY Chandrachud, Indu Malhotra and KM Joseph held that financial losses cannot be offset on the weary shoulders of the laboring worker, who provides the backbone of the economy. Section 5 of the Factories Act cannot be invoked to issue a blanket notification that exempted all factories from complying with humane working conditions and adequate compensation for overtime, as a response to a pandemic that did not result in an internal disturbance of a nature that posed a grave emergency whereby the security of India is threatened. In any event, no factory/ classes of factories could have been exempted from compliance with provisions of the Factories Act, unless an internal disturbance causes a grave emergency that threatens the security of the state, so as to constitute a public emergency within the meaning of Section 5 of the Factories Act. The Bench directed that overtime wages shall be paid, in accordance with the provisions of Section 59 of the Factories Act to all eligible workers.
Kush Kalra v. Union of India, Writ Petition (Civil) No.1213 of 20 (Dated09/12/2020).
NO COVID-19 POSTERS OUTSIDE PATIENTS HOMES WITHOUT DIRECTION FROM COMPETENT AUTHORITY UNDER DMA.
A Bench of Justices Ashok Bhushan, R. Subhash Reddy and MR Shah held that no State or Union Territory is required to paste posters outside the residence of COVID-19 positive persons. The State Governments and Union Territories can resort this exercise only when any direction is issued by the competent authority under the Disaster Management Act, 2005. In view of the guidelines issued by the Ministry of Health and Family Welfare which are referable to exercise of power by the authority under Disaster Management Act, 2005, no requirement is present there regarding pasting of posters against the houses of COVID-19 patients.
HOMEOPATHY CAN BE USED IN PREVENTING AND MITIGATING COVID-19 AS PER AYUSH MINISTRY GUIDELINES.
A Bench of Justices Ashok Bhushan, R. Subhash Reddy and MR Shah held that when statutory regulations itself prohibit advertisement, there is no occasion for Homeopathic medical practitioners to advertise that they are competent to cure COVID-19 disease. When the Scientists of entire world are engaged in research to find out proper medicine/vaccine for COVID-19, there is no occasion for making any observation with regard to Homeopathic medical practitioners. The homeopathy does not cure the disease, but it cures the patients. While modifying some observations made by the Kerala High Court, the Bench observed that homeopathy medicine is contemplated to be used in preventing and mitigating COVID-19 as is reflected by the advisory and guidelines issued by the Ministry of AYUSH and the High Court is right in its observation that no medical practitioner can claim that it can cure COVID-19.
FUNDAMENTAL RIGHT TO HEALTH INCLUDES AFFORDABLE TREATMENT.
A Bench of Justices Ashok Bhushan, R. Subhash Reddy and MR Shah observed that right to health is a fundamental right guaranteed under Article 21 of the Constitution of India. Right to health includes affordable treatment. Therefore, it is the duty upon the State to make provisions for affordable treatment and more and more provisions in the hospitals to be run by the State or local administration are made. It cannot be disputed that for whatever reasons the treatment has become costlier and costlier and it is not affordable to the common people at all. Even if one survives from COVID-19, many times financially and economically he is finished. Therefore, either more and more provisions are to be made by the State Government and the local administration or there shall be cap on the fees charged by the private hospitals, which can be in exercise of the powers under the Disaster Management Act. The Bench had taken suo motu cognizance of fire incident which took place in Rajkot, Gujarat resulting in death of patients in the COVID-19 Hospital. In this regard, the bench directed that all States and Union Territories should appoint one nodal officer for each covid hospital, if not already appointed, who shall be made responsible for ensuring the compliance of all fire safety measures. In each district, State Government should constitute a committee to carry fire audit of each Covid hospital atleast once in a month and inform the deficiency to the management of the hospital and report to the Government for taking follow up action. The Covid hospital who have not obtained NOC from fire department of the State should be asked to immediately apply for NOC and after carrying necessary inspection, decision shall be taken. Those Covid hospitals who have not renewed their NOC should immediately take steps for renewal on which appropriate inspection be taken and decision be taken. In event, Covid Hospital is found not having NOC or not having obtained renewal, appropriate action be taken by the State.
(Muneeb Rashid Malik is a student of law and can be reached at muneebrashidmalik@gmail.com. He tweets @muneebmalikrash).
