No One Has The Right To Put Own Life In Jeopardy Or Others' Life At Risk', Gauhati HC Asks State Authorities To Act Tough Against COVID Protocol Violators [Read Order]

The suggestion was made by a division bench comprised of Chief Justice Ajai Lamba and Justice Manish Choudhury, after it was informed to the court that the "the residents do not maintain proper social distance in public or workplaces. This has resulted in the extensive spread of the Pandemic".

Background of the PIL and the Court's observations

The Court was hearing a Public Interest Litigation wherein it was contended that since the directions contained in various orders and notifications issued on behalf of Health and Family Welfare Department and other related Departments have not been followed by the residents of the State of Assam, the number of COVID-19 positive cases have gone up to 109040 as on 31.08.2020

It was also highlighted that although the State resorted to lockdown and prescribed various measures for controlling and curbing the spread of Coronavirus by the State agencies, however, the State agencies had failed in implementing mandatory use of proper face masks by the residents of the State who move out of their houses.

The petitioner also submitted before the court that "in the absence of medicine or vaccine, wearing face masks and following the norm of social distancing are the only measures to avoid the spread."

In this context, the court said,

"We are pained at recording that it is common knowledge that the residents of the State in market places and otherwise can be commonly seen without wearing any masks, or wearing masks below nose level which would result in the spread of Coronavirus (COVID-19). We further find that people get together in groups in market places and in work environments without caring for their own health or the health of the others. Surely, no resident/citizen has the right to put his own life in jeopardy or put the life of the others at risk." (emphasis supplied)

The bench further remarked,

"For the said purpose various legislations have been made and in the exercise of power various orders have been issued. The orders, however, apparently are being flouted because the punitive action provided thereunder is not being taken against the violators of the Government orders and notifications." (emphasis supplied)

Before the court, the Standing Counsel, Health & Family Welfare Department, Government of Assam submitted that all such directions which were issued were being blocked by learned Legal Remembrancer, Assam on one technicality or the other.

To this, the court said,

"We hereby call upon learned Legal Remembrancer, Assam to show the reasons for being an impediment in implementing measures for safeguarding the health and lives of the public, without an appropriate cause, in the perception of the learned Senior Standing Counsel, appearing for the Health & Family Department, Government of Assam."

Order issued by Government of Assam, Health and Family Welfare Department (Dated 08-05-2020)

It may be noted that vide an order dated 08-05-2020, the Government had directed that the following measures would be complied by the general population within the The State of Assam, in order to safeguard human life and health:-

1- All persons moving for whatsoever purpose and under whatever reason/authority in public places like street, hospital, office, market, etc. must compulsorily wear 3-ply mask or cloth mask. In absence of a mask, a gamocha or any other traditionally woven cloth in at least two layers which completely covers the mouth and nose can also be used.

2- No person/official will attend any meeting/gathering without wearing masks.

3- Any person moving around in personal/ official/ public vehicle must be wearing masks compulsorily.

4- Any person working at any site/ office/ workplace must wear masks.

5- Masks used by one person shall not be used by any other person.

6- Disposable or single-use masks shall be properly disposed of by following due procedure. Cloth masks should be washed properly with soap and hot water and dried, after every single use.

It will be the responsibility of the employer to ensure that his/ her employees wear the 3-ply mask or cloth mask without fail.

Anybody violating these instructions on the use of face cover will be punishable under section 188 of the Indian Penal Code. All police officers not below the rank of Assistant Sub-Inspector of Police shall compound the offence on payment of rupees five hundred for the first, second and third offence and on payment of one thousand rupees for the subsequent offences.

Fines thus collected shall be deposited into Government Treasury through treasury challan under the Head of Account 0070 – Other Administrative Service -01 – Administration of Justice – 102 – Fines & Forfeitures, after maintaining due records

Directions given by the court

The court directed that anybody violating instructions dated 08.05.2020 (supra) on use of face cover should be punished as suggested vide order dated 08.05.2020.

Notably, the court highlighted the fact that this order was being issued in view of the fact that the hospitals are overflowing with COVID-19 positive patients. The oxygen is already in short supply in the hospitals.

The bench further said,

"The Government is spending its limited resources and coffers. For the benefit of the poor, COVID-19 tests are being conducted without any cost. In such circumstances, public interest convinces us to pass this order at this stage and juncture. It is only to safeguard the lives of the public that these harsh measures are being provided by virtue of an order of the Writ Court dehors the technicalities stated to be raised by learned Legal Remembrancer, Assam."

Further, the concerned District Heads of Police, Deputy Superintendents of Police and Officers-in-Charge of the Police Stations were directed by the court to be proactive on the streets and check whether the directions issued vide order dated 08.05.2020 (supra) and this Court are complied with or not.

The court directed that in case the directions are violated, fine be imposed as provided in the order dated 08.05.2020. The fine imposed on the violators and thus collected should be brought to the notice of the Court through the Office of the learned senior Standing Counsel, Health & Family Welfare Department, Government of Assam.

The court also directed the Deputy Commissioners to involve officers/officials from various Departments who would inspect various areas in their respective townships, including Sub-Divisions to find out whether the respective police stations/police officers are complying with directions issued vide order dated 08.05.2020, and this Court by virtue of this order.

Lastly, the court said,

"The direction that is being issued today is considering emergent conditions that have emerged as we have observed on the streets, at this stage, and the dangers associated with the spread of the Pandemic."

Case Details:

Case Title: Tanmay Jyoti Mahanta v. The State of Assam and 3 Ors.

Case No.: PIL 53/2020

Quorum: Justice Ajai Lamba and Justice Manish Choudhury

Appearance: Advocate D. Das, Advocate T. Parashar (for the Petitioner); Senior Standing Counsel D. Saikia (for the respondents)

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