“We shall overcome someday” (derived from Charles Tindley’s gospel song “I’ll Overcome Some Day” (1900). This is how the High Court of Karnataka and the State Government have sought to overcome the Covid19 Pandemic. In the last 400 days, there was not a single incident where emotions flared up, the Advocate General, Additional Advocates General, Government Advocates, Public Interest Litigants and their advocates have contributed in no small manner to this. The directions were comprehensive and painstaking, and there was systematic and meticulous monitoring by the Karnataka High Court. What is more, the proceedings were almost like interactive sessions between all stakeholders, resulting in best solutions being arrived at and implemented by complying with the directions issued.
1. These are difficult times. Judiciary, especially the high courts across the country, have been monitoring performance by the executive almost on day-to-day basis. The pressure on the bureaucrats, doctors and health workers is beyond human comprehension. Judiciary must interact with them in such way as to ensure adherence to statutory obligations by inspiring confidence.
2. Making ‘murderous’ charges, calling government as having failed, attributing disaster to executive will only worsen the situation
3. Let me extract two observations of the Karnataka High Court made on 18 May 2020 and 29 April 2021.
18:5:2020- “The State Government has failed to come out with a clear factual stand and the State is not willing to accept the errors committed by its officers. Though we are not passing any order today only on the ground that we need to spare time to deal with issues of marginalized sections of society, we hope that the State Government comes out with a fair stand on the subject”
29/04/2021 – “We have issued stringent directions from time to time against the State Government and the agencies and the instrumentalities of the State. While we do so, we must clarify that there are several Government officials, the officials attached to various agencies and the instrumentalities of the State including BBMP, the doctors, nurses and paramedical workers, who are rendering valuable services to the society at large which needs to appreciated by all. While we are passing various directions in the context of Article 21 of Constitution of India, we must record our appreciation to the efforts made by all the stakeholders in the right direction.”
4. This is how confidence is built. This is how the Court was able to monitor the situation for last one year without passing severe stricture which would destroy the psyche of those who are in front-line fighting the war.
5. Few observations and stern orders are extracted below.
23/03/2020 “As the Central Government and State Government have taken several steps in the right direction and as both the Governments are gradually initiating several steps, at this stage, we do not wish to pass any direction which will interfere with the steps already initiated by the Central Government and the State Government. The reason is that, advice of experts is available to the Central as well as the State Government.”
16/04/2020 “Accordingly, on 11th April, 2020, a Circular was issued by the Additional Chief Secretary containing directions to BBMP. The first and most important direction given to BBMP is in clause (1) of the Circular which directs that BBMP shall locate all migrants, homeless and stranded persons within its limits without shelter, migrants without any homes and to accommodate them in shelter homes to be provided by BBMP. It specifically records that action shall be taken forthwith. As regards the prisoners who have been granted bail but have not availed of the order of granting bail, the Secretaries of District Legal Services Authorities by visiting the prisons will inform such prisoners about their right to apply for relaxation of conditions of grant of bail and the Secretary and/or para-legal volunteers can render necessary assistance to the prisoners to enable them to apply for modification or relaxation of the conditions of bail. Such applications can be entertained by the Courts by hearing through video conference. As regards the issue of health and safety of Pourakarmikas, in paragraph 23, the State must come out with elaborate steps taken for health and safety. In respect of the Pourakarmikas, if the measures which have been set out in paragraph 23 are really implemented at grass-root level, most of the grievances of the Pourakarmikas will be taken care of. The Secretaries of the District Legal Services Authorities can give feedback on this aspect within a period of one week after ascertaining whether there is implementation of the measures set out in paragraph 23. The learned counsel for PUCL has also agreed to submit a report on what is stated in paragraph 23. This issue will be gone into when the petition is heard in the next week. While dealing with the issue of care of animals, the State has not come out with any policy decision on two issues. The first issue is whether pet shops are treated as a part of essential services and second issue is, whether the agencies or shops supplying pet foods are permitted to sell the pet foods as a part of essential supplies. The State must respond on these aspects on the next date. As regards the issue of farmers, though part of the compliance is dealt with in the submissions of the State, we propose to deal with the said issue on 9th April, 2020. The State has not stated anything about the supply of passes to the farmers and labourers to approach their fields. The issue regarding farmers will be considered on the next date. Another grievance which is made by him as well as by the learned counsel representing the Karnataka State Legal Services Authority (KSLSA) is that Hunger Helpline of the Government is not working and is ineffective. The State Government must immediately respond and make Hunger Helpline effective
21/04/2020. We also invited the attention of the learned Additional Advocate General to the incident occurred in the city day before yesterday. In the said incident, the doctors, nurses, health workers and ASHA workers were assaulted. The State Government will place on record the action taken report about the said incident. Now, coming to the issue of domestic violence, in paragraph 14, the State Government has come out with the measures taken and they have also given details of the calls received making a grievance regarding domestic violence. However, it is not clear whether after receiving the calls, the protection officers have been informed to take action under the statute. As far as the issue of migrants is concerned, the State will also ascertain whether the data received by the Regional Commissioner in the Karnataka Bhavan, New Delhi, from various States regarding migrant workers is being looked into for tracing migrant workers from other States who are in the State of Karnataka.
24/04/2020. While we say so, the State Government must clarify the stand whether in the present situation, the homeless people can be allowed to stay on streets. The reason is that if persons continue to stay on streets, there will be a violation of norms including the norms of social distancing. BBMP and the State Government must also disclose whether any effort is made to ascertain whether any of the persons staying on street are having the symptom of infection of corona virus.
28/04/2020. Learned Additional Advocate General will take instructions whether any machinery has been set up by the State Government at the grass root level, taluk level and district level in order to address the grievances of the farmers when it comes to the implementation of the guidelines of the Central Government and State Government. The learned Additional Advocate General states that he will respond by 4th May, 2020.
30/04/2020. Considering the fact that huge number of vehicles have been seized which are four wheelers, three wheelers and two wheelers, there is a great deal of urgency involved and therefore, we have acceded to the request made on behalf of the State Government to immediately take up the present IA.
05/05/2020 We are informed by the learned Additional Advocate General that free transportation is provided to the migrant workers by KSRTC buses within the State. The State Government will also specify whether the workers who are permitted to travel from one district to another are subjected to medical check up regarding symptoms of COVID-19.
08/05/2020. There has to be rational policy of the State Government laying down the manner in which all the migrant workers who wish to travel back to their home States can be allowed to travel back to their respective States. If some migrant workers who are residing far away from the capital city desire to go back to their respective States and all the procedural formalities with the other States are completed, it follows that necessary arrangements for operation of Shramik Special Trains from different stations will have to be made.
12/05/2020. The State will have to also address the issue of the facilities extended to the migrant workers who are from the State of Karnataka and who are working in other States. The State will also to place its response on record regarding the facilities extended to them for returning to the State which will include the payment of train fare. Necessary details such as requests received by the State of Karnataka, steps taken for repatriation of the migrant workers to Karnataka etc., shall be also placed on record.
18/05/2020. The State Government must state before the Court whether it wants to deviate from the stand taken by the Government of India on the issue of bearing the fare of the Railways and whether it really wants to take a stand that a migrant worker who has no income and is not in a position to pay Railway fare will not be allowed to travel by Shramik special trains to his home State.
21/05/2020 We request the learned Additional Solicitor General of India to take instruction from the Central Government and Railways on the question of waiver of train fare for the migrants who have been stranded in the State and who are not in a position to pay. The learned Additional Solicitor General will take instructions whether the State can be permitted to use the funds transferred by the National Disaster Response Fund for payment of train fare of the migrants who are not in a position to pay any amount.
26/05/2020. It will be appropriate if both the State Government and Central Government place on record the details of the arrangements which are made by the State Government as well as by the Indian Railways to provide food and water to the migrant workers who are traveling by Shramik special trains, which will take care of three meals a day. This is in the context of the fact that train journey to States like Uttar Pradesh, Bihar, West Bengal, Orissa takes two to three days.
28/05/2020. Though going by the stand taken by the State Government, arrangements are required to be made for transporting remaining 6,30,000 migrant workers and their family members to their respective States, as of today, the State has submitted requisition to the Railways to arrange 22 trains to the State of West Bengal from Bengaluru, 4 trains to Bihar from Bengaluru, one train to Assam from Mysuru and one train to Odisha from Koppal.
04/06/2020. The State must also explain how a migrant worker who is located in a district from which there is no arrangement for providing Shramik train can be reach the place from which Shramik train departs. In what manner transport arrangements are made must be placed on record.
11/06/2020 We, therefore, direct the State Government to ensure that a mechanism is evolved which will ensure that each and every migrant worker who has registered himself on Seva Sindhu portal is specifically informed about the requirement of reporting at the specific Mustering Centre and also the requirement of again registering himself in that Mustering Centre. Another prayer is made which is regarding regulating the price of Powered Air Purifying Respirators (PAPRs). Another issue which is noted in one of our earlier orders is regarding the action taken against persons who have indulged in hoarding of Personal Protection Equipment kits and N-95 masks.
18/06/2020 We direct both the State Government and the Central Government to file statement of objections/written submissions dealing with Interlocutory Application No.4 of 2020. The same shall be filed by 24th June, 2020 which will be considered on 25th June, 2020 in the afternoon session.
25/06/2020 The State Government must also come out clearly before the Court by stating whether the State wants to lend a helping hand to those migrant workers who wish to go back to their respective States who have registered themselves on Seva Sindhu portal, but due to various reasons, could not go back on or before 24th June, 2020. . We direct the Union of India to place on record the number of requisitions made by the State of Karnataka for running of Shramik special trains from 9th June, 2020 till date. The statement of the Union of India shall be placed on record on or before 1st July, 2020.
02/07/2020. It is pointed out across the Bar that the scheme of the Central Government known as ‘Atma Nirbhar Scheme’ under which a person who is not holding a ration card of any State is entitled to get free ration of 5 kgs Rice and 1 kg Dal has been continued till November 2020. The learned Additional Solicitor General of India stated that within three days, he will place necessary material on record to show whether the scheme has been continued. If the scheme has been continued, it is needless to state that the same will have to be implemented scrupulously in the State of Karnataka. The learned counsel appearing for the applicant states that a very serious situation has arisen in the containment zones. He stated that he has forwarded the list of about 900 families to the Bruhat Bengaluru Mahanagara Palike (for short ‘BBMP) as well as to the State Government. The said families which are residing in the containment zones are not getting food. He submitted that even the issue of health care of the people residing in the containment zones needs to be gone into.
07/07/2020. We direct BBMP to look into the grievance made by the applicant as regards the 900 families. BBMP must ensure that it performs its obligation of supplying food to the needy families in containment zones.
09/07/2020. We make it clear that the State Government must ensure that immediate action of identifying the needy people in the containment zones must start and the action of supplying food packets and ration to the needy persons in the containment zones shall be taken immediately. We have already observed that any violation will amount to violation of the fundamental rights of the citizens under Article 21 of the Constitution of India. We hope and trust that the State Government will reconsider its decision taken to close down the Mustering Centres and in effect, to stop extending the facility of payment of railway fare to the migrant workers considering the fact that the situation in terms of the spread of COVID-19 has been worsened during the last few days. If there is any change of approach and decision, the same shall be also informed to the Court on 13th July 2020.
13/07/2020. In the normal course, a Writ Court should be very slow in summoning senior Government officials before the Court. In this case, there is not only a complete failure, but there is a defiance on the part of BBMP of the provisions of the SOP contained in the Government circular dated 17th April 2020. We expected that the State will step in. Only way to ensure enforcement of SOP in the circular dated 17th April 2020 is now to procure the presence of the Additional Chief Secretary of the Urban Development Department and the Commissioner of BBMP through video conferencing.
16/07/2020. We are conscious of the fact that the machineries of the State and the machinery of BBMP are working under a great stress. What is important is that there should be earnest effort made to comply with the provisions of SOP issued by the State Government on 17th April 2020 and the order of BBMP itself of 19th April 2020. None of the affidavits filed by the Commissioner of BBMP indicate that there is any desire to take steps for complying with the provisions of SOP. If there was a genuine desire to do so, BBMP would have come out with an affidavit indicating how many needy persons have been so far identified.
20/07/2020. Apart from poura karmikas, the issue of house keeping staff and allied staff workers in COVID-19 hospitals has been raised. The issue raised is about the failure to provide appropriate PPE kits to house keeping and allied staff and making a provision for their well being.
06/08/2020. There cannot be any dispute that not only the doctors and health workers required use of N-95 masks but, as a safety measure, even a common man is required to use N-95 masks as it is said that N-95 masks works as a good protection against the spread of COVID-19. Therefore, the State Government will have to take a clear stand on oath before the Court firstly, on the question whether N-95 masks and hand sanitizers are available in the market and there are no complaints regarding non-availability of the same. Secondly, the State Government must also state what is the price variation of N-95 masks manufactured by different manufacturers. The State Government has purchased a large number of N-95 masks for the benefit of the doctors, health workers etc. The State Government must place on record the prices at which N-95 masks were acquired by it from time to time.
13/08/2020. As regards prayer ‘A’, the State Government will have to take a clear stand on one important issue. If a worker or an employee is forced to undergo quarantine on the ground that he is a primary contact or is forced to undergo quarantine because he is tested positive, whether the quarantine period or the period required for undergoing treatment for COVID-19 can be treated as the period spent on duty. Though sufficient time was granted on 6th August 2020 to the State Government to disclose the rates at which it has procured N95 masks and other items, even today, the learned AGA seeks time to comply with the said direction.
26/08/2020. Only by way of indulgence, we grant time to the State Government till 31st August 2020 to file an affidavit in this behalf. The State Government must come out with data regarding availability of the aforesaid items in the market at a reasonable price. Merely because few dealers have the stock available, it cannot be inferred that adequate stock is available in the market for the benefit of common man.
04/09/2020. As regards extending the benefit of PPE risk allowance to all the Pourakarmikas and other sanitization workers of the local authorities, even the written submissions filed today record that no decision has been taken by the State Government. Considering the object of providing PPE risk allowance of Rs.10,000/-, the decision of the State Government will have to be expeditiously taken, inasmuch as, those who are entitled to the benefit must get it immediately. We direct the State Government to take an appropriate decision in this behalf within a period of two (2) weeks from today.
09/09/2020. The submission of the learned counsel appearing for the petitioner is that the fifth respondent has not complied with its obligations under the provisions of the Contract Labour (Regulation and Abolition) Act, 1970 (for short, “the said Act of 1970”) and in particular Section 21 thereof. Sub-section (1) of Section 21 provides that the responsibility for payment of wages of each worker employed as a contract labour is of the contractor. 5. We, therefore, direct the fifth respondent to file an affidavit reporting compliance with the requirements of sub-section (2) of Section 21 of the said Act of 1970. We grant time of two weeks to the fifth respondent to file such an affidavit.
22/09/2020. The State Government will have to immediately take a call on activating the State Level Committee and the District Level Committees for ensuring that they perform their duties. The State Government must come out with a programme or scheme which will ensure that availability of adequate infrastructure and facilities in all the private COVID hospitals in the State is monitored regularly. Apart from the rights of the patients under Article 21 of the Constitution of India, there is some kind of a State funding to these hospitals. We direct the State Government to come with a concrete solution on this aspect by 28th September 2020.
29/09/2020. Now coming to the issue of providing amenities to pourakarmikas in the State and payment of wages…. It is the duty of BBMP to ensure that the nominated representatives submit reports to BBMP regularly and punctually about the payment of wages to the workers by the contractors. The State Government must ensure that all the ULBs comply with the provisions of the said Act of 1970. In this petition, the issue of availability of number of beds for treating the COVID-19 patients has been raised. We, therefore, direct the State Government to place on record an upto date District-wise data of number of beds available in the State-owned or privately-owned COVID-19 hospitals.
06/10/2020. As regards non-payment of wages to the drivers, it is stated in paragraph 7 that the Contractor has not made payments. On this aspect, the State Government is not helpless and the State Government can always issue directions to Hubli-Dharwad Municipal Corporation to ensure that overdue wages are paid to the drivers. The State Government to initiate appropriate action in this behalf immediately.
13/10/2020. The other issue is regarding the availability of number of beds for treating the COVID-19 patients in the State. This issue is of enormous importance considering the ever increasing number of positive cases in the State. Firstly, the State will have to place on record its policy decision or the order for reserving 50% of the beds in every private hospital for COVID-19 patients. Secondly, the State must also place on record its policy decision or order deciding the percentage of beds to be reserved for COVID-19 hospitals for free treatment.
20/10/2020. The State Government will also place on record whether there is any mechanism available for regulating the charges claimed by the Ambulance Service Providers for transporting COVID-19 patients. The State Government will respond on this aspect before the next date.
03/11/2020. Now coming to the issue of fixation of cost of transport of oxygen cylinders, in the compliance report, a copy of the Government Order dated 28th October 2020 has been placed on record. We have indicated to the learned AGA several major flaws in the said order and the possibility of the transporters or suppliers indulging in profiteering taking undue advantage of the flaws in the Government Order dated 28th October 2020. We direct the State Government to immediately reconsider the said order dated 28th October 2020 and ensure that a proper order is issued within a maximum period of one week from today which will ensure that there is a rationalized formula for fixing maximum transport charges and that no transporter or supplier of oxygen cylinders can indulge in profiteering. The State Government must report compliance by the next date.
10/11/2020. On the face of it, notwithstanding the closure of all schools run by the Local Bodies, the Government and Government aided schools, the State Government is bound by the mandate of clause (b) of sub-section (1) of Section 5 of the said Act of 2013. Now it is candidly admitted that from June 2020, mid-day meals have not been provided to children up to class VIII or children within the age group of 6 to 14 years as provided in clause (b) of sub-section (1) of Section 5 of the said Act of 2013. We have heard the learned counsel appearing for the parties on the implementation of mid-day meal scheme as well as the implementation of the scheme for providing food to the eligible beneficiaries through Anganwadies.
18/11/2020. The State Government must come out with a better response by filing fresh affidavits based on the discussion which took place across the Bar.
23/11/2020. The issue of supply of food through the Anganwadis will have to be dealt with in the light of the affidavit filed by Dr.Nagambika Devi, Additional Chief Secretary to Government, Department of Social Welfare.
15/12/2020. We direct the State Government to respond on one of the issues raised regarding long delay by the laboratories for issuing reports on the tests conducted of COVID-19. This issue needs to be addressed immediately by the State Government as approximately more than one lakh tests are being conducted in the State everyday except on Sunday. The State Government must respond on this limited aspect by 22nd December 2020.
22/12/2020. We, therefore, direct the second respondent to place on record along with a statement of objections the measures which are being taken by the second respondent for the benefit of thecleaning and sanitary workers engaged by it.
05/01/2021 The Central Government will have to explain how maternity benefit in terms of clause (b) of Section 4 of the said Act which is of less than the amount of Rs.6,000/- can be paid. The Central Government must clarify the position on or before the next date of hearing.
12/01/2021. At this stage, the learned counsel appearing for the petitioner pointed out that as regards the rates of treatment for COVID-19 patients in the private hospitals, though publicity is given by publishing the advertisements in the newspapers, it will be ideal if publicity is given by affixing the banners on the State Transport buses as can be seen from Annexure-R8 to the written submissions filed in the said writ petition. The said suggestion is worth considering. The State Government will consider this suggestion and issue appropriate directions.
16/02/2021. As both the Central Government and the State Government are represented before the Court, they must respond on the question whether any insurance scheme can be devised for the benefit of the members of the Bar.
02/03/2021. It will be appropriate if a meeting of the office bearers of the Bar Association, the State Government officials, Life Insurance Corporation of India Limited and four public sector insurance companies including New India Assurance Company Limited is convened to discuss the issue with a view to ascertain whether schemes can be evolved as discussed in the said decision of the Delhi High Court.
17/03/2021. The State Government will place on record the progress made in the matter of bringing an insurance scheme for the advocates before the next date by filing a memo.
25/03/2021. The other issue which the State will have to answer is about administration of COVID-19 vaccine. There are large number of citizens residing in slums and shanties which include the workers working on construction sites and various sites of infrastructural projects which are underway in the city of Bengaluru. The question is whether the State should make special efforts to persuade the citizens residing in thickly populated localities who are more vulnerable to the infection of COVID-19, to take vaccines. Perhaps, it will be a step in the right direction for curbing the spread of the infection of COVID-19. The State Government shall respond on this aspect on the next date. The steps taken by Bruhat Bengaluru Mahanagara Palike as observed in paragraph 15 of the order dated 17th March 2021 shall be also placed on record within a period of one week from today.
31/03/2021. We have heard the submissions of the learned Additional Solicitor General of India on implementation of clause (b) of Section 4 of the National Food Security Act, 2013 (for short ‘ the said Act of 2013’). On the next date, we will hear the submissions of the State of Karnataka on the question of the implementation of clause (b) of Section 4 of the said Act of 2013 in the State.
07/04/2021. A concern is expressed about the availability of adequate number of beds in the hospitals as well as in the Intensive Care Units. By the order dated 6th April, 2021, the State Government has reiterated its order dated 23rd June, 2020 concerning reservation of beds for COVID-19 patients and maximum charges which can be levied for COVID-19 treatment. We direct both the State Government and the Bruhat Bengaluru Mahanagara Palike to place on record the steps taken to implement the orders dated 23rd March, 2021 and 2nd April, 2021. The State Government at different levels in the State and BBMP in the city of Bengaluru, shall give a wide publicity about the measures to be taken by the common man and about all the helplines which are available at different levels.
17/04/2021. The written submissions record that there is no shortage of oxygen throughout the State. But, the State Government must consistently monitor the availability of adequate oxygen supply on an hourly basis. As noted in the earlier order, the failure to provide the test results within a reasonable time is creating several serious issues. We direct the State Government to enforce the said direction scrupulously and consider of taking an action against those laboratories which are not following the direction. Even in the case of oxygen, like Remdisivir medicine, the State Government will have to immediately consider of creating some sort of a distribution system by which the State itself distributes the oxygen by co-ordinating with the suppliers of the oxygen. The State Government shall ensure that the War Room set up for the said purpose operates effectively and the hospitals or patients are able to get in touch with the War Room so that in case of non-availability of oxygen and Remdesivir medicine, the same can be provided on a war footing. Another issue in the memo is that the Christian community is facing a serious crisis as in the city of Bengaluru and Mysore, there is no place left for burial of the dead bodies and in fact, a request has been made to civic body to allot five acres in the outskirts of the city.
22/04/2021 To avoid all controversy, the State Government shall immediately consider whether it can itself purchase the requisite quantity of Remdesivir medicine directly from the manufacturers or the dealers and supply the same to various hospitals both private and public in a fair and rational manner. The State Government shall take an immediate decision on this aspect.
23/04/2021. We direct the State Government to set up help desks outside the COVID hospitals in the City for helping the COVID-19 patients who cannot be admitted in that particular hospital. The help desks shall also provide information regarding the availability of Remdesivir medicine in the City.The State Government will also come out with the decision to purchase Remdesivir drug directly from the manufacturers so that the State Government can equitably distribute the same to various hospitals as per their demands.
27/04/2021. The State Government will place on record the availability of beds throughout the State and especially, in those districts where there are more than 5000 active COVID-19 cases as of today. Necessary data shall be placed on record by the State Government by day after tomorrow (29th April 2021). Even BBMP will place the latest data on record. As regards the availability of beds with the Army and Air Force in the City of Bengaluru, the learned Standing Counsel appearing for the Central Government states that the beds which are available in the City are occupied by the families of the Army and Air Force personnel and they are not in a position to provide extra beds. There is already a letter addressed by the Additional Chief Secretary to the Health and Family Welfare Department of the State Government to the Air Vice Marshal requesting him to make available beds for COVID-19 patients. We, therefore, direct the State Government to place on record on or before the next date, the steps taken to prepare a broad estimation of the number of beds required in near future and the steps taken to enhance the intake capacity of all the COVID-19 hospitals. Before we part this order, we must record a clarification. We have issued stringent directions from time to time against the State Government and the agencies and the instrumentalities of the State. While we do so, we must clarify that there are several Government officials, the officials attached to various agencies and the instrumentalities of the State including BBMP, the doctors, nurses and paramedical workers, who are rendering valuable services to the society at large which needs to appreciated by all. While we are passing various directions in the context of Article 21 of Constitution of India, we must record our appreciation to the efforts made by all the stakeholders in the right direction. Further directions issued regarding;
Availability of Covid-19 beds
Availability of Remdesivir
Availability of Oxygen
Issuance of food security and other issues
Other Issues.
S.Basavaraj, Advocate, Daksha Legal & Member, Karnataka State Bar Council.
Daksha Legal 