[Ban On Mobile In Hospitals] 'Ban Impinges Upon The Right Of Free Communication Of Patients', Calcutta HC Asks Govt. To Ease Out The Ban [Read Order]

The Bench of Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee further stated that the State Government should follow any directive/advisory issued in this regard by the appropriate department of the Central Government.

Writ Petition before the Court

The decision of the State Government to ban the use of cell phones inside the hospital premises, and in particular, the hospitals where COVID-19 patients are admitted, was challenged in 4 Writ Petitions. Such a decision was contained in a Government Order dated April 22, 2020.

The Order was passed by the State Government on the basis that cell phones could be carriers of Corona Virus. The contention of the petitioners was that the decision to ban the use of cell phones in hospitals is arbitrary and without any basis.

"Unless such a patient is a permitted user of the cell phone, he will be totally cut off from his family", said the petitioners.

The Counsel for the petitioners submitted that although under Section 2 of the Epidemic Diseases Act, 1897, the concerned authorities can adopt measures and issue directions to prevent the spread of an epidemic, their actions must pass the test of reasonableness.

It was alleged that by imposing such a ban, the State Government has illegally impinged upon the right of free communication which is a Fundamental Right of every citizen of India including the patients infected with Covid-19 and their family members.

It was further submitted that the prohibition imposed by the State Government was violative of Articles 19 (1) (a) and 21 of the Constitution.

It was also submitted that to single out and ban mobile phones is absurd. Mobile phones expedite recovery of patients by keeping them in a good frame of mind and ensuring their mental well-being.

State Government's Stand

The case of the State Government was that in the wake of the outbreak of the Covid-19 pandemic, the Government adopted such measures as it thought would be in the best interest of everybody concerned.

It was contended that there was one school of thought that cell phones could be potential carriers of Coronavirus. Since this was a possibility, the Government played it safe. It cannot be said that the decision of the Government was based on no material at all.

Further, it was submitted before the Court that with the passage of time, the restriction imposed has been eased out gradually and cell phones are now being permitted to be used in most of the hospitals.

In the hospitals like M.R. Bangur and Calcutta Medical College where cell phones are still not being allowed, sufficient arrangements have been made for audio/video calling so that a patient can be in touch with his/her family members and the latter can be kept informed about the state of health of the patient.

Court's Analysis

The Court anxiously considered the respective contentions of the parties. The Court observed that there is no doubt that the cell phone has become an integral part of our lives.

"Mobile phones have come to be inextricably intertwined with our daily lifestyle. Indeed, if we do not have a cell phone handy, many of us feel diffident. Almost gone are the days of the fixed landline telephones", noted the Court.

The Court was of the view that no doubt that the ban on the use of cell phones in hospitals impinged upon the right of free communication of patients and others present in a hospital.

However, the Court said, one must remember that with the sudden outbreak of Covid-19 pandemic, the world at large including the governments across the countries were faced with an unprecedented situation.

"The people of this planet including the medical sector across the globe were taken by complete surprise by the novel Corona Virus about which nobody knew much", opined the Court.

The Court said that nobody had any idea as to how to contain the spread of the virus or to escape from the sinister claws of the virus. There was no medical protocol in place.

The Court acknowledged the fact that the situation was not different in the State of West Bengal. There was one school of medical thought that subscribed to the idea that mobile phones could be potential carriers of the Corona Virus.

The Court further said that it is true that there is no conclusive evidence that mobile phones are potential carriers of the virus. It is equally true that there is no conclusive evidence that mobile phones cannot be potential carriers of Corona Virus.

Under those circumstances, the Court stated,

"We cannot say that it was wholly unreasonable, imprudent or arbitrary on the part of the State administration to impose a ban on the use of mobile phones inside hospitals which were treating Covid-19 patients. The situation was such that everybody was groping in the dark in search of ways and means to restrict the spread of Covid-19 pandemic and find a cure for the malady. In such a situation, often it becomes necessary for the people in governance to take a decision on a trial and error basis or to impose certain restrictions on the members of the society for the safety of their health which may have the effect of curtailment of some of their constitutional rights." (emphasis supplied)

The Court further opined that it did not think that the decision of the State government was perverse or Wednesbury unreasonable.

Further the Court noted that arrangements have been made by the State Government in the hospitals particularly where mobile phones are still not being permitted, so that a patient can be in touch with his/her family members and they can also see each other virtually through video calling mode.

One another issue raised by the Counsel for the petitioners was that if the other hospitals were now permitting the use of mobile phones, then there was no reason why M. R. Bangur Hospital and Calcutta Medical College Hospital still not permitting the use of mobile phones.

The Advocate General representing the State submitted that these two hospitals have more critical patients than the other hospitals and hence the restriction on use of mobile phones is still there in these two hospitals.

However, the Court was not quite impressed with this stand of the State. The Court said,

"It is not quite acceptable that all the other hospitals are treating less critical patients than the aforesaid two hospitals. However, we are sure that the appropriate sector of the State administration shall revise and reassess the situation in the said two hospitals, i.e., M.R. Bangur Hospital and Calcutta Medical College Hospital and, unless there are very compelling reasons to be recorded in writing by the appropriate authority, the ban on the use of mobile phones in these two hospitals also will be lifted."

The Four writ petitions being WPA 5374 of 2020, WPA 5376 of 2020, WPA 5416 of 2020 along with WPA 5377 of 2020 were accordingly disposed of.