The High Court of Kerala has refused to issue directions for conducting mandatory RT-PCR COVID-19 test for expatriates before boarding flights to India under the Vande Bharat Mission scheme.
A bench comprising Justices Anu Sivaraman and M R Anitha observed that the Standard Operating Procedure for return of Indians from abroad has been formulated "after proper application of mind and due consultation with medical experts". The Court also observed that it had no doubt that Central Government has put in place proper procedure based on expert medical advice and the available relevant data.
Therefore, the Court opined that an interference through a writ of mandamus is not warranted at this stage. The Court closed the writ petition observing that the Central Government will consider the concerns raised by the State Government regarding absence of COVID-19 testing before travel.
The bench was considering a Public Interest Litigation petition filed by social activist C R Neelakandan seeking directions to the Centre to take effective steps to conduct mandatory RTPCR tests on passengers not more than 4 days before embarkation process to India at the cost of the Centre. There was a further prayer to direct the State Government to take all precautionary measures to ensure proper quarantine of NRIs who arrive in Kerala.
The petitioner's counsel, Advocate Harish Vasudevan, told the court that many expatriates, who were asymptomatic before embarkation, turned COVID-19 positive after arrival in Kerala. Since only thermal screening is carried out as per the SOP under the Vande Bharat scheme for repatriation of Indians stranded abroad, there are high chances of asymptomatic COVID-19 carriers travelling in flight, putting at risk the life and health of co-passengers, submitted the petitioner.
The Additional Advocate General, Renjith Thampan, told the bench that the State Government has raised the issue before the Centre through a letter sent by the Chief Minister.
The Central Government submitted that the SOP was formulated on the basis of expert advise and that the same provided ample protection as is practical and feasible. The bench was also told about the Supreme Court's order staying the direction passed by the Orissa High Court for mandatory COVID-19 testing for migrants to re-enter Odisha.
The subjective opinion of the petitioner, who is not an expert in the field cannot be a reason to interfere with the protocol set in place, submitted the Centre.
Considering the submissions, the Court observed "we find that the Standard Operating Protocol has apparently been framed after proper application of mind and due consultation with medical experts".
"We have no doubt that proper procedure will be put in place and revised in a time bound manner by the Central Government after considering the situation prevalent and taking note of the requests made by individual States as also expert medical advice and the available relevant data. In the above view of the matter, we are of the opinion that an interference through a writ of mandamus is not warranted at this stage. Suffice it to say that concerns expressed by the State Government will also be considered by the Central Government while formulating and revising Standard Operating Protocols in respect of the required testing as well".
The bench added that it will not be proper for it to issue directions in the absence of further materials.
"In the absence of any further material, it may not be proper for this Court to issue the directions as are sought for by the petitioner. The writ petition is accordingly closed with the observation that the concerns addressed in Exhibit P8 letter by the State Government will also be duly considered by the Central Government".
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