India, High Court of Bombay, 22 February 2022, Public Interest Litigation No. 84 and 85 of 2021
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
- Vaccination
- Health, right to information and freedom of expression
Outcome of the decision
General Summary
The Court was hearing a bunch of Public Interest Litigations challenging the prohibition on the use of local trains in the city by non-vaccinated people, saying it was illegal, arbitrary, and in breach of the citizens’ fundamental right to move freely across the country, as guaranteed by Article 19(1)(d) of the Constitution. The Bombay High Court granted two more days to the Maharashtra government to issue fresh directives on whether people who have not taken the anti-COVID-19 vaccine or have taken only received one dose would be allowed to travel in local trains. It was noticed and observed that the State Disaster Management Rules framed in terms of the provisions contained in section 78 of the Act were observed in total breach.
No decision was taken by the state executive committee. Later when it was noticed it was seen that the chairperson of the committee had passed an order without waiting for the deliberations with the other members which satisfied that fundamental rights of citizen guaranteed under Article 19(1)(d) of the constitution were abrogated without giving primacy to the rule of law. The orders passed were considered illegal.
Facts of the case
Public Interest Litigations were filed challenging the order of the government restricting the use of local trains for the persons who were not vaccinated. The orders that were passed by the former Chief Secretary of the Government of Maharashtra. It was noticed and observed that the State Disaster Management Rules framed in terms of the provisions contained in section 78 of the Act were found to be in total breach.
No decision was taken by the State Executive Committee. On the contrary, orders were issued from time to time by the former Chief Secretary in the capacity of the Chairperson of the State Executive Committee imposing restrictions to be adhered to during the second wave of the pandemic without there being any deliberation with the other members of the Committee, who happened to be bureaucrats who had their offices in the same building where the Chief Secretary had his office. Since there were no meetings of the State Executive Committee, minutes of meetings, though required to be recorded in terms of statutory rules, were not recorded. None of the orders recorded any emergent like situation warranting the Chairperson of the Committee to pass an order without waiting for deliberations with the other members satisfied that fundamental rights of citizens guaranteed under Article 19(1)(d) of the Constitution were abrogated without giving primacy to the rule of law.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private collectiveDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
Orders were passed in clear violation of the prescribed procedure notwithstanding, the Court granted time to the Government to take an informed decision on how to life the restrictions that were illegally imposed particularly giving due regard to the decrease in COVID-19 cases as well as bearing in mind that earning a bad name at this stage would wash away the commendable work performed by officials /staff at all levels in Maharashtra, in keepings the citizens safe and secure during the second wave.
The State Executive Committee will make an appropriate plan for the lifting of restrictions considering all aspects of the matter including the circumstances that the fundamental rights of a section of the citizens were abrogated because of certain illegal orders passed by the Chairperson of the State Executive Committee previously. Although it is not the function of the Court to direct the State Executive Committee to take action in any direction, it would be eminently desirable if the State Executive Committee makes a plan of action.
The Court expressed that they hope and trust that in keeping with the present situation and the observations made above, the State Executive Committee will make an appropriate plan of action for lifting of the restrictions considering all aspects of the matter including the particular circumstance that the fundamental rights of a section of the citizens were abrogated of because of certain illegal orders passed.
Conclusions of the deciding body
The Court concluded that the orders which were passed by the State Executive committee were illegal as they did not follow the orders properly and also they violated the provisions and fundamental rights of the constitution and also there was no emergency situation due to which these steps were taken so the Courts made these orders illegal and took the restrictions away and ordered the State Executive Committee to come to conscience and make a particular direction.
Fundamental Right(s) involved
- Freedom of expression
- Freedom of movement of people, goods and capital
- Right to good administration
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. freedom of expression / right to information
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The Chairperson of the Committee passed an order without waiting for deliberations with the other members, satisfied that the fundamental rights of citizens guaranteed under Article 19(1)(d) of the Constitution were abrogated without giving the primacy to the rule of law. The Court made certain critical oral observations in open Court wondering how an order passed by the Chairperson of the Committee without following the relevant law could be passed off as the decision of the State Government. Orders having been passed in clear violation of the prescribed procedure notwithstanding.
Other notes
On "type of measure challenged": this committee is part of the state government which helps and assists the State Authority in the performance of its functions and coordinates action in accordance with the guidelines laid down by the State Authority and ensures the compliance of orders issued by the State Government.
