Right To Health Cannot Be Obstructed By Those Who Don't Bother To Wear Masks, Maintain Social Distancing: Karnataka High Court

A division bench of Chief Justice Abhay Oka and Justice Suraj Govindaraj, on Thursday clarified "As far as offence under sub section 1 of section 5, (Karnataka Epidemic Diseases Act) for failure of wearing mask and social distancing is attracted not only in relation to organisers/leaders of rallies congregations etc but each and every person who participates in the same and who commits violation of wearing of mask and maintaining of social distancing commits and offence. Moreover, any person who abates any offence commits an offence as provided in section 8 of the said act."

Further, "There are cases wherein congregation, rallies functions, the officer of public servant discharging their duties were obstructed. Even in such a case the offender is not only the organiser or leader but all those who obstruct the officer or public servant."

The court said "Somehow the police machinery is taking offences punishable under Section 5 very lightly, we find that unless there are orders of court even FIRs are not registered."

Accordingly, it directed the Director General of Police (DGP), to issue directions/guidelines to all police officers as well as officers who are authorised to take action of compounding, under sub section 1 of section 10 of the Karnataka Epidemic Diseases Act, 2020, for effective implementation of penal provision of the said act.

The court also directed DGP to constitute a team of senior police officers who will monitor registration of offences punishable under the said act and investigation thereof.

State government is directed to give wide publicity to the fact that violation of rules regarding wearing of mask, maintaining of social distancing, etc are cognizable and non-bailable offences.

Also, to educate police officers about the provisions of section 5, 8 and 9 of the said Act, in as much as there have been very few cases of registration of FIR though, offences punishable under sub sections 2, 3 and 3 (a) of Section 5, are cognizable and non-bailable offences.

The bench said "One cannot forget that exercise of powers under Section 4, by the state is for maintaining public health. Right to lead a healthy life is an integral part of Article 21 of the Constitution of India. Right to lead a healthy life cannot be obstructed by individuals who do not bother to follow the rules regarding masks, maintaining social distance, congregating etc."

It added "Therefore, when the state agencies take a strict view of the violation made it must be remembered that is being done for upholding the fundamental rights of citizens of India under Article 21 of the constitution of India, of leading a healthy life."

No One Should Be Spared who has committed a violation.

The court in its order noted that offences under section 5 are cognizable and non-bailable. Therefore, mandate of section 154 of CrPC, will squarely apply if information is furnished about commission of an offence to an officer in charge of a police station, he is under an obligation to record FIR. Thereafter investigation must be carried out expeditiously within 30 days by an officer not below the rank of inspector.

The court referred to its earlier orders and said "Various orders passed by this court indicated that there were congregations in the city attended by thousands of persons. Not only the organisers of the congregation were not wearing masks but persons who attended the congregation were also not wearing masks." It also observed that during last few days there has been a surge in number of covid-19 cases in the state and in particular in cities like Benagluru and few other districts.

Following which it said "The said act (Karnataka Epidemic Diseases Act 2020, has come on statute book during epidemic of covid-19. The main object is to ensure that the government gets powers to impose restrictions to issue directions, to come out with regulations and orders for exercising powers under section 4, thereof. The powers under section 4 are very wide. All the powers are intended to confer a toll in the hands of the state government to ensure that epidemic disease like covid-19 does not spread."

It added "Unless penal provisions under the said act such as section 5 to 9 and especially section 5 are enforced strictly the measures taken under section 4 will be of no consequence and no effect."

The court opined "The state government should not tolerate reluctance on part of police machinery in enforcing penal provisions of the said act. The order passed by this court shows that there was a great deal of reluctance on part of the police for registering FIR. The reason being that eminent political leaders and religious leaders indulged in violation of regulations/rules and order passed under section 4 of the said act."

The bench added "In fact if political leaders and religious leaders are supposed to lead by example, therefore for giving the right signal it is all the more necessary that police machinery act very swiftly and strictly when it comes to violations committed by any citizens and more importantly by prominent leaders and religious leaders."

The court said "What is applicable to the category of leader and religious leaders, will be applied to those who claim to be celebrities or those who are regarded as celebrities. We hasten to add that no one should be spared who has committed violation of the said act and regulations and order issued thereunder."

Relaxing of regulation may amount to violation of Article 14.

Advocate G R Mohan and Advocate Puthige R Ramesh appearing for petitioners brought to the notice of the court the order dated April 3, by which the earlier restriction of restricting maximum 50 percent in theatres was relaxed at the instance of one organisation, till April 7.

The court said "Though the regulation and order issued under section 4 are in the nature of delegated legislation a writ court cannot decide in what manner it should be issued. Needless to add that considering the seriousness of the situation we hope and trust that the power of relaxation is not exercised at the request of selected few individuals. The reason being such action may amount to violation of Article 14 of Constitution of India."

Consider stringent punishment on habitual offenders:

Considering facts that offences under sub section 1 of section 5, which is punishable under sub section 3 (a) are made compoundable offences. There may be cases of multiple offences committed by said accused, it is for the legislature to look into this aspect and consider whether for the second offence any stringent punishment can be imposed.

Take Action against employees of KSRTC:

The petitioners counsel placed on record several photographs which accordingly showed employees of KSRTC Union and political leaders in the state congregating. The court said "State govt will have to take note of the said photographs and take stringent action in accordance with law."

The court has directed the state government to file a compliance report on Thursday, April 22.