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Face Mask Against Face Cover: Controversy Still Unsettled In Delhi High Court Judgement Of 'Sudesh Kumar Vs. Govt. Of NCT Of Delhi W.P. (C) 9408/2020'?

Mohit Kumar Gupta
13 April 2021 9:52 AM GMT
Face Mask Against Face Cover: Controversy Still Unsettled In Delhi High Court Judgement Of Sudesh Kumar Vs. Govt. Of NCT Of Delhi W.P. (C) 9408/2020?
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Discipline demands a decision to obey in India and during the pandemic COVID-19 recurrence phase, the judgement passed by the High Court of Delhi has come out as a prima facie reflection of larger public good for the people in Delhi, in holding a vehicle to be a public place even if occupied by only one person for the purpose of wearing a mask compulsorily, however with the observation that 'Wearing of masks cannot be made an ego issue' since a mask is stated to be a 'Suraksha kavach' for preventing the spread of the corona virus, as one reads through para nos. 52 and 56 of the judgement jointly for comprehension, the same being reproduced hereinbelow for ready reference:

52. A mask is a 'Suraksha kavach' for preventing the spread of the corona virus. It protects the person wearing it, as also the persons to whom the person is exposed. Since the inception of the pandemic, the wearing of masks has been one measure that has saved millions of lives. In fact, wearing a mask even in one's own homes is encouraged if there are elderly persons or persons suffering from co-morbidities. A vehicle which is moving across the city, even if occupied at a given point in time by one person, would be a public place owing to the immediate risk of exposure to other persons under varying circumstances. Thus, a vehicle even if occupied by only one person would constitute a 'public place' and wearing of a mask therein would be compulsory. The wearing of a mask or a face cover in a vehicle, which may be occupied by either a single person or multiple persons is thus, held to be compulsory in the context of the COVID-19 pandemic.

56. This Court would also like to add that all the four Petitioners in these cases, being advocates/lawyers ought to recognise and assist in implementation of measures to contain the pandemic, rather than questioning the same. Advocates as a class, owing to their legal training have a higher duty to show compliance especially in extenuating circumstances such as the pandemic. Wearing of masks cannot be made an ego issue. Compliance by advocates and lawyers would encourage the general public to show greater inclination to comply. The duty of advocates and lawyers is of a greater magnitude, especially in the context of the pandemic for enforcement of directives, measures and guidelines issued under the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005.

- emphasis supplied

Interestingly as it goes, the discussion herein revolves around the petitioner in the matter titled as 'Sudesh Kumar Vs. Govt. of NCT of Delhi W.P. (C) 9408/2020' whose case story was materially different, got tagged along with other three similar matters, wherein the petitioners challenged the imposition of fine of Rs. 500/- (Rupees Five Hundred only) for non-wearing of mask while travelling/moving alone in their private vehicles in violation of the Delhi Epidemic Diseases (Management of COVID-19) Regulations, 2020 (hereinafter referred to as 'the Regulations of 2020'). The para nos. 5 and 14 of the judgement aptly and succinctly records the facts and submissions concerned, which is reproduced herein below for ready reference:

5. In W.P.(C) 9408/2020, the Petitioner is a lawyer stated to be practicing at Karkardooma Courts, New Delhi. On 25th October 2020, he was travelling in his i-10 Grand bearing no. DL8CAE1725, along with his wife and had reached a spot in front of the of D.C. Office, Nand Nagri at about 1.50 P.M. It is stated that a Civil Defence Personnel forced him to stop his car. After the Petitioner's car was stopped, the Civil Defence Personnel, along with a member of the Enforcement Team of SDM, Shahdara, informed him that since he is not wearing a face mask but only a cotton safa/dupatta/scarf around his mouth and nose, he would be liable to pay a fine of Rs. 500/-. In this petition also, quashing of the challan dated 25th October, 2020 is prayed for. Along with the quashing of the challan, a refund of Rs.500/- paid as fine is prayed for, as also compensation of Rs. 10,00,000/- for the harassment and insult allegedly caused to the Petitioner, and for alleged misuse of legal provisions to exhort Rs. 500/- from the Petitioner.

14. Mr. Sudesh Kumar, Petitioner appearing in person in W.P.(C) 9408, submits that he was wearing a cotton scarf around his mouth and nose while he was travelling in his car. Despite the same, he has been fined with Rs.500/-. He refers to the challan imposed on him, dated 25th October, 2020 which does not mention as to what was the offence for which he was fined. Moreover, he submits that the person who issued the challan had a booklet of challans, which was signed by District Magistrate without any name, time, vehicle number and place being mentioned. Such issuance of the signed booklet by the District Magistrate is contrary to law, which could lead to harassment.

- emphasis supplied

The petition, in essence carried the fundamental issue with it as to whether the term 'Face Cover' differs from the term 'Face Mask' and whether the Regulations, 2020 did not recognize Face Cover in the form safa/dupatta/scarf as materially compliant for the purposes of such regulations read with the National Directives for COVID-19 Management as were issued then, by the Ministry of Home Affairs, Government of India. That additionally, although the judgement did uphold the power of an executive magistrate to issue challan under the Regulations, 2020, however the concern raised pertaining to issuance of pre-signed/signed booklet by the District Magistrate was not appreciated qua the legality as such. That as understood, none of the three issues framed each in para no. 7 and para no. 23 detailed in the judgement, dealt with the same in any manner:

Issues in Para No. 7

First, whether it is compulsory for persons driving alone in their own private cars to wear face masks and the manner in which such masks ought to be worn. Secondly, if as per the various guidelines, orders and notifications issued, the fine imposed on the Petitioners is valid and legal. Thirdly, if any compensation is liable to be granted.

Issues in Para No. 23

i. What is the ambit of the power to issue guidelines under the provisions of EDA and DMA?

ii. Whether under the guidelines which have been issued under the April Order by the DMA and June Notification, wearing of face masks is W.P.(C) 6595/2020 & connected matters compulsory even when an individual is travelling in a privately owned car. If so, in what manner is the face mask to be worn?

iii. Whether the Executive Magistrates who have issued the challans and imposed the fines of Rs. 500/- each were properly authorised in law?

Well, the Hon'ble Court generally takes the submission of the learned counsel representing the state as the instructed stand of the state, and yes, it comes out clearly from the submissions of the learned Additional Standing Counsel, as recorded in para no. 20 of the judgement, which is reproduced herein below for ready reference:

20. Mr. Sanjay Ghose, ld. ASC adopts the arguments of Mr. Devesh Singh and further submits that while interpreting the various orders and notifications issued under the DMA and EDA, the Court would bear in mind the purpose of issuance of the such a notification/order. The purpose is to curb the spreading of disease. The intention behind the April Order and June Notification ought to be given effect to and the same ought not to be interpreted in a narrow manner.

- emphasis supplied

Bypassing such issues in its entirely, and co-extensively with the dismissal of the writ petitions, the confusion did make a way through when the Hon'ble Court in para no. 52 held that the "The wearing of a mask or a face cover in a vehicle, which may be occupied by either a single person or multiple persons is thus, held to be compulsory in the context of the COVID-19 pandemic." The broad idea about the use of the term 'Face Cover' can only be understood in the mention of such term not only in the National Directives of COVID-19 Management i.e. Face coverings: Wearing of face cover is compulsory in public places; in workplaces; and during transport, but also in The Delhi Epidemic Diseases, (Management of COVID-19) Regulations, 2020 i.e. Wearing of Face mask/cover in all public places /workplaces and If studied carefully, the same should have otherwise been held to be in favour of the petitioner and the challan should have been necessarily quashed with consequent returning of the fine so paid, although without distinguished ordered compensation, however the saga came out differently and with a blow.

Meanwhile, during the times of court battle by the petitioners on one side, the author too attempted to secure some authentic information from the Ministry of Home Affairs, Government of India as well as its subservient part, the Delhi Police through filing of applications under Sections 6(1), 7(1) read with Section 4(1)(d) of Right to Information Act, 2005 titling the same as 'Life and/or Liberty', which mandatorily required them to respond within forty-eight (48) hours of the receipt of such applications. The explanation was also enclosed therein, concerning the justification to treat such application under 'Life or Liberty' provision created in the Act, the same is being reproduced herein below:

"The liberty and also life of the applicant and all others is severely prejudiced and restricted due to prosecution being made by state officials on account of implementation of the unlocking order issued by the Ministry of Home Affairs, Government of India particularly in respect of wearing a face cover while being in transport, however the term 'face cover has not been defined or otherwise described' in any manner and thus creating a confusion as to whether simple pieces of cloth or handkerchief wrapped around the face or face shield if used would be taken as true and complete compliance of the order issued."

- emphasis supplied

The application filed with Ministry of Home Affairs, Government of India on 02 September, 2020 was replied only on 25 September, 2020 beyond the period of forty-eight (48) hours prescribed for applications filed under 'Life or Liberty' provision, while the application filed with Delhi Police on 02 September, 2020 was first replied as received on 12 October, 2020 continuing till 17 November, 2020 killing the very purpose of seeking information, assuming negatively that the information provided was of any help to the cause.

Points of Information - Ministry of Home Affairs, Government of India

1. Provide the information about face mask being compulsory or optional to be worn during transport, as per the order issued by Home Secretary, India.

2. Provide the information about face shield being compulsory or optional to be worn during transport, as per the order issued by Home Secretary, India.

3. Provide the information about face shield and face mask both being compulsory to be worn during transport, as per the order issued by Home Secretary, India.

4. Provide the information about face shield or face mask any of two, being compulsory to be worn during transport, as per the order issued by Home Secretary, India.

5. Provide the list of items included within the meaning of the term face cover used in the unlocking order issued by Home Secretary, India.

6. In reference to point no. 5 above and otherwise, provide information about inclusion of 'handkerchief', 'piece of cloth' etc. which covers face, comes under the definition of the term 'face cover'.

7. Provide the rank and designations of officers duly designated or allowed to conduct prosecution of offenders not complying with requirement to have 'face cover' during transport.

8. Provide the information of applicability of direction to wear face cover during transport, by children, infirm or sick (like asthmatic patients) or senior citizen.

- emphasis supplied

The reply dated 25.09.2020 furnished by Sh. M. Subramanian, Deputy Secretary (DM-I) contains the following, which are beyond a citizen's immediate requirement to know the law to obey the law:

Wearing of face cover is compulsory in public places, in work places and during transport as mentioned under the National Directives for COVID 19 management and also refer 9 & 10 of the guidelines on Unlock 4 regarding penal provisions etc. issued by MHA vide order dated 29.08.2020 which is available on the website of MHA at www.mha.gov.in

Points of Information – Delhi Police

  1. Same as above (as were submitted to Ministry of Home Affairs, Government of India)
  2. Same as above.
  3. Same as above.
  4. Same as above
  5. Same as above
  6. Same as above
  7. Same as above
  8. Same as above
  9. Provide data and details about the number of challans issued by the Delhi Police in prosecution for violation of order issued by the Union Home Secretary i.e. non-wearing of 'face cover' during transport, till date.
  10. In reference to point no. 9 above, provide the amount of fine prescribed for which the challans are issued.
  11. Provide the copy of the Standing Order or instructions/office order/directions (by whatever name called) which are issued for regulating the manner in which prosecution for violation of order issued by the Union Home Secretary i.e. non-wearing of 'face cover' during transport, is to be carried out.

- emphasis supplied

The Delhi Police did not provide any relevant information concerning the definition or description of Face Cover as against the Face Mask, but it did ask every district office and traffic range to supply the information. The Additional Deputy Commissioners of Police (Traffic) of Outer Range, Southern Range, Central Range, New Delhi Range and Wester Range mentioned various reasons like 'Does not relate to this office', 'No specific information is maintained in this office', 'Matter pertains to local police', 'the order copy is enclosed which is self-explanatory' etc. while the Deputy Commissioners of Police (Traffic) Head Quarters stated that 'The guidelines issued from time to time are available on the website of Ministry of Home Affairs, GOI and Delhi Government. Further it is intimated that the latest guidelines was issued by MHA vide No. 40-3/2020-DM-I(A), Government of India, Ministry of Home Affairs, North Block, New Delhi dated 17.05.2020.' The Deputy Commissioner of Police from the Police Head Quarters, however provided a Circular No. 09/2020 titled 'Directions to implement the Delhi Epidemic Diseases (Management of COVID 19) Regulations 2020' issued vide Ref. No. 1501-1650/Record Br./PHQ(AC- ) dated 15/06/2020 and the quest for information presumably got settled at their end. Interestingly, one can question that the information which was not possessed at the Head Quarters level, could that have been available at district offices by any chance, to have an answer of 'No' in all possibilities.

Since the matter has been sub-judice for quite some time until 07 April, 2021 preventing any comments to be so made openly and in the meanwhile, ordinary people might have otherwise adjusted to the understood idea of shunning Uneconomic Justice i.e. to spend thousands/lakhs to secure justice against Rs. 500/1000/2000 challan howsoever wrong or unjustified it may be, for a set bargain in terms of payment upfront through compounding of such violation/offence, the cause taken by the learned advocates in the capacity of aggrieved citizens by preferring the writ petitions has been observed by the Hon'ble High Court of Delhi as a stand and stance of displaying non-compliance to the state instructions in extenuating circumstances such as the pandemic which is humbly found to be not so relatable and connecting as such. Nevertheless, as ordinary citizens, people have known and cribbed for long about several unreported instances and stories of illegalities committed by state officials and elected/nominated representatives, who do not possess any need to approach the Hon'ble Courts since they are not necessarily being challaned for such petty offences/violations as their identities prove as a saver. The author respectfully believes that the whole idea of categorizing few aggrieved persons with their professional identity representing a class when the matter being prosecuted on their behalf was not dependent per se qua their identity as advocates as such, was entirely alien to the merits and unhealthy practice leading to sheer loss of reputation of learned advocates in the eyes of a common man, who will undoubtedly find advocates as mischief mongers and that too without reading the judgement which otherwise caters only to the readers who can read and understand English.

The primary genesis, if studied, would be located in the displayed negligence coupled with non-proclivity of the state officials to properly draft the subordinate legislations or to otherwise come up with clear clarifications in light of such instances being found or brought up before them, enjoying immunity on trials and errors, patently under the privilege of protection in good faith while enjoying taxpayers' money at ride. The value of a good draft can be perceptibly understood through the consequent haywire effects of a bad draft and the same is humbly pointed out at present. Although the Ministry of Health and Family Welfare (MoHFW), Government of India did make a clarification in September, 2020 and further recorded the said submission in an affidavit filed before the Hon'ble High Court of Delhi, that it has not issued any guidelines directing people to wear a mask while travelling alone in a vehicle, as reported by news agencies namely ANI, Mint, Business World, The Print and several others, the same did not find any mention in the judgement passed. It may be noted that the large question arises as to whether the said ministry was competent enough to issue such clarification at all instead of Ministry of Home Affairs, Government of India and whether whatever clarification was so made, did the same really help the cause when all seemed to appear was disowning of liability to take a stand and its shifting from one government to the other, with the request made by the said ministry to get itself deleted from the array of parties in the court petitions. The legal position was and is clear that such clarification lacked jurisdiction and could not have been enforced in any manner without the backing of the National or State Disaster Management Authority but who stopped the latter from acting suo-moto to put the issue at rest by issuing necessary clarifications and/or new notifications. The author respectfully believes that the following issues of larger public interest or importance do arise in general, which has post-judgement bearing qua the understanding of the decided and undecided fate of the petitions:

  1. What should an ordinary citizen of this country do, if there appears to be a need to have bonafide clarification concerning the understanding and implementation of law notified through sudden public notices or otherwise?
  2. In continuation of the above, Whether or not the state must be held responsible for not catering/replying to such clarification requests if filed as such simpliciter or through points of information being sought under the Right to Information Act, 2005?
  3. Whether the state should be held accountable for improperly drafting such subordinate legislations?
  4. Whether the issue raised i.e. imposition of fine while travelling/moving alone in a private vehicle without wearing the mask, was an issue by learned advocates per se or as ordinary citizens, who were otherwise found learned advocates by profession?
  5. Whether the jurisprudence and law concerning award of compensation in writ jurisdiction has evolved to such level, whereby state excesses in any form through imposition of meagre fines, penalties and other punishments, can motivate people to shun the understood idea of uneconomic justice?
  6. Whether in light of dooming economy qua lower levels of per capita income owing to widespread unemployment with no such state assistance in particular concerning the higher costs of authentic and protective masks being sparsely available in the market, the face covers including therein safa/dupatta/scarf/stole/handkerchief/cloth pieces etc., be replaced with face masks at all places for implementation purposes?
  7. Whether COVID-19 pandemic takes planned vacations or leaves in consultation with the state and has any perceptible harm timings (day/night) or otherwise defined territorial jurisdictions, if connected with present pervasive engagements of the state?

The non-response stand of the state could also be exemplified even when the author made sincere attempts during lockdown and consequent unlocking phases, to seek requisite clarifications from the National Disaster Management Authority, Delhi Disaster Management Authority and the Delhi Police, intermittently on 23 March, 21 May and 31 May of the year 2020, the relevant points being reproduced herein below for ready reference, although no response lest about an acknowledgement was received ever till date:

1. Whether clause (a) of the order containing the term 'offices', would include the offices (commercial spaces/personal/home offices as per Master Plan in force) of practising advocates, whether or not practising in Delhi jurisdiction?

2. Whether para 1(a) i.e. 'offices charged with law and order and magisterial duties' would include the officers of the court i.e. practising advocates, whether or not practising in Delhi jurisdiction?

3. Whether employees or other staff of practising advocates, whether or not practising in Delhi jurisdiction, are covered under para 3 read with para 5 of the order?

4. What shall be the format (with or without annexure) of the declaration to be furnished and who all are empowered to seek and admit such declaration?

5. Whether sealing of the motorable and unmotorable borders of Delhi with neighbouring states, would prevent practising professionals from securing movement, in or out, once or multiple times in compliance with para 3 of the order?

6. What is the definition and/or meaning of 'Red Zone' since other zones and places like Orange Zone, Green Zone, Containment Zone etc. are discernible?

7. Whether any order(s) on or after 18.05.2020 issued under Section 144 Cr.P.C. by the District Deputy Commissioners (or by DCsP/Addl. DMs/Addl. DCsP/SDMs/ACsP) in 11 Districts or by the Commissioner of Police for the entire Delhi divided in 14 police districts? If yes, provide the web link where the same is uploaded for the knowledge of the members of the public.

8. Whether any direction is being issued to make the orders known to the public/citizens at large although a provision is made applicable whereby DMs/DCs shall adequately inform and sensitize the field functionaries about instructions issued?

9. Whether the orders issued are made available in Hindi Language in compliance with Official Languages Act, 1963 read with rules, presidential order and constitutional provisions, since most of the people who are required to comply cannot understand the complex English language used?

10. Whether Four wheeler vehicles with seating capacity more than 5 passengers (which may go up to 10-12 people) shall have the same restriction of maximum 3 passengers/occupants at a time?

11. Whether sale of Gutkha, Cigarette, Biddis etc. is allowed despite the fact that spitting is prohibited?

12. Under 'National Directives for COVID 19 Management', what is the definition and/or meaning assigned to the term 'Shops', since in India shop may range from 6ft X 6 ft. to large super mart/showroom and otherwise?

13. Under 'National Directives for COVID 19 Management', what is the definition and/or meaning assigned to the term 'workplaces', and whether workplaces would include shops and if yes, as to why the terms workplaces and shops are interchangeably used?

14. Under 'National Directives for COVID 19 Management', whether every shop, whether small or colossal, should bear the cost, arrange and ensure compliance with thermal scanning and provision of hand/sanitizer wash at entry, exit points and common areas etc.?

15. Under 'National Directives for COVID 19 Management', whether the condition of 'not more than 5 persons' is limited to customers only and if yes, then what is the parameter in terms area or size of shop?

16. Whether local police is empowered to issue additional directions other than those contained in the order(s) passed by the National State Executive Committee, NDMA and State Executive Committee, SDMA?

17. Whether there is no condition as to the number of people at one time in any or all places including religious places, restaurants etc. except for shops (in shops, the limit is 5 persons at one time) which is provided for, in 'National Directives for COVID 19 Management'?

18. Whether states/UTs can impose restrictions on the movement of people inter-state (like the present one where Haryana Borders with Delhi have been sealed yet again as per media reports) in view of point nos. 6(i) and 6(ii) of the captioned order?

19. Whether the night curfew as imposed shall be incomplete and enforceable without the issuance of S. 144 Cr.P.C. orders by the district authorities?

20. Whether sports complexes shall be considered in the Phase III only?

21. Whether movement of persons of the age above 65 years, pregnant women, persons with co-morbidities and children below the age of 10 years, for health purposes shall be considered as a separate category than essential services/activities?

22. How shall non-compliance with any of the directions issued under the Disaster Management Act, 2005 be punishable under Section 188 IPC since the act is a special law providing for specific offences, unless the latter is in relation to orders being issued under Section 144 Cr.P.C.?

- emphasis supplied

Today, most of us, being cognizant of the life threatening instances due to COVID-19 are trying our level best to contain it and prevent it from spreading in one way or the other, but state as parens patriae has failed to remove doubts in many ways as there appears to be no forum other than the Hon'ble Courts for redress. Even the expansive concept of public place as held in the judgement and in particular, its definition, which is being interpreted in line with the intent of the law legislated, creates a pervasive real confusion if co-related with the preventive notion of social distancing i.e. 2 Gaj Ki Doori. One proceeds logically to know, drawing analogy from the Noise Pollution Control Measures, as to how and from where, such 'Doori' be calculated and maintained, and whether wearing masks becomes mutually exclusive if such 'Doori' is maintained in one's private space if not vehicle per se. An extension of the said reasoning, if adopted would even include a lawyers' office or chamber or one's home even, whereby people should keep wearing masks, probably because a client may come in a day or some guests/neighbours may drop in without notice as such. One should not lose sight of harsh realities of life being observed in our daily lives, where sick or infirm people finds it really difficult to keep wearing inexpensive masks for long, people with spectacles having to touch the masks every time adjusting to ward off fog or sweat as the case may be, Cab drivers not turning on the air conditioners for low reimbursement of per km charge from the aggregators/companies, businesses manufacturing, selling and purchasing non-bonafide/fake/spurious masks and not the least, the availability as well as non-availability of masks and the better protective ones being so expensive like Honeywell N95 Masks, beyond the immediate reach of a common man. The same might not be a justification in any manner in the eyes of the state, but yes, a daily trade-off between the fight for survival against the virus COVID-19, as death would otherwise be inevitable but should not arrive during empty stomach.

Beyond the immediate periphery of Delhi, ubiquitous is the status of non-wearing of mask and there appears to be no different situation in terms of penetration of COVID-19 if compared with statistics in Delhi. A sample drive was even undertaken to know and actually understand if wearing a mask inside a private vehicle while moving alone, is expedient or not, and what comes out is a natural NO. The person intending to drive the vehicle, usually carries the same mask and does not wear a different/new mask after entering the vehicle. Due to scorching heat or chilling winters, sweat or fog as appears as the case may be, during presence of automatic climate control which is otherwise not present universally across thousands of vehicles, compels the driver to at least touch the outer surface of the mask once or twice, and such instances increases for the person who wears spectacles alongside other co-morbidities such as respiratory illnesses and others. This way, the virus, even miniscule as present on the outer surface gets transmitted to other surfaces in the car without being located/spotted ever and shall make the driver as well as the vehicle a live carrier. Even assuming that the driver may have to interact with street vendor, a beggar or anyone from the enforcement staff after rolling down the windows, the possible benefits of not wearing a mask beforehand would outdo the mandatory direction from the Hon'ble Court because in such cases at least, the hands would not have been infected, and outside people must have been found wearing masks thereby essentially saving all the parties in the process. In a nutshell, only bonafide and standardized masks or otherwise properly washed and sanitized cloth masks, can help in preventing the spread of virus through droplets emanating from the respiratory system of the live carrier and not the other way round, however the propensity of the virus to spread otherwise does not make the mandatory provision a win-win situation. Surprisingly, what misses from the underlined emphasis by the Hon'ble Court, is the following extract of a research article titled Monica Gandhi and George W. Rutherford, Facial Masking for Covid-19 — Potential for "Variolation" as We Await a Vaccine, N Engl J Med 2020, October, 2020, duly mentioned in the judgement on Page No. 22 of 32, which is found to be otherwise very significant by the author and explain the obvious:

……..The Centers for Disease Control and Prevention (CDC) therefore recommended on April 3 that the public wear cloth face coverings in areas with high rates of community transmission — a recommendation that has been unevenly followed across the United States.

- emphasis supplied

The mistake of the state is being attributed to everyone who takes up the cause of justice, and when the subject matter is found small in terms of monetary valuation vis-à-vis the investment of bare minimum operational expenses (excluding the expenses incurred or to be incurred on attorney's fees), the same is acknowledged, whether explicitly or implicitly, as luxurious litigation by the state, thereby giving undeclared and undecided sanction to public wrongs. Even today, when a person, whether or not a learned advocate, is challaned by traffic police for an offence i.e. caught in a vehicle driven and stopped beyond the stop line/zebra crossing for having given way to an ambulance by adjustment, through CCTV clicked photo image served with a notice a few days later, prefers to compound the same by pleading guilty, since the cost of winning the case, over several dates and innumerable helter-skelter, would be in fact be the feeling of being a loser at the end, and person mentioned here could also include a practical learned judge as well, who knows the system in its entirety.

That being the practical reality of our existence in Indian system, the learned advocates as a class should have otherwise been commended by the Hon'ble Court for adopting procedurally correct system of legal redress than the dramatic route of strikes, which though yield definitive results in actual, but is otherwise termed contemptuous besides being illegal. The following excerpt from the less complied by, judgement of the Hon'ble Supreme Court of India might hold some strength for the learned advocates to keep adopting the present channel against the forbidden:

Ex-Capt. Harish Uppal vs Union of India (2003) 2 SCC 45.

"Lawyers ought to know that at least as long as lawful redress is available to aggrieved lawyers, there is no justification for lawyers to join in an illegal conspiracy to commit a gross, criminal contempt of court, thereby striking at the heart of the liberty conferred on every person by our Constitution. Strike is an attempt to interfere with the administration of justice. The principle is that those who have duties to discharge in a court of justice are protected by the law and are shielded by the law to discharge those duties, the advocates in return have duty to protect the courts.

- emphasis supplied

The morale and confidence of the citizens of the country who are led and guided by their elected representatives, and such smaller section of citizens particularly the learned advocates sui generis amongst other category of professionals, who have remained at the receiving end due to restricted and suspended functioning of the Hon'ble Courts during COVID-19 pandemic, should not have been brought down in accessing Hon'ble Courts seeking redress of bonafide issues otherwise remaining or would have continued to remain under the dust of confusion over clarity in the files of the state executive, had it not for the present petitions filed and decided as such. The author sincerely believes that law can be respected and complied with, only when it is clear as well as available to be known in the language understood and therefore, the learned advocate in 'Sudesh Kumar Vs. Govt. of NCT of Delhi W.P. (C) 9408/2020', in the author's humble opinion, has been left penalized till date without a decision on his mistake as understood as such. The necessary inference could be the unsettled controversy remaining over the acceptability of wearing Face Cover than the Face Mask alone, in the same fashion as a stole being worn by the Hon'ble Prime Minister of India with impunity.

The author is an advocate at High Court of Delhi and District Courts-Delhi NCR. He primarily practices in the areas of Access to Justice, Access to Information (RTI), Criminal Laws, Child Rights, Education and Consumer Laws and engages in public policy matters. He can be reached at [email protected]. Views are personal.


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