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IN THE HIGH COURT OF BOMBAY AT NAGPUR
R.K. DESHPANDE, PUSHPA V. GANEDIWALA, JJ.
Hospitals’ Association, Nagpur, through the President, Dr. Ashok Arbat & Another – Appellant
Versus
Government of Maharashtra, through the Principal Secretary, Public Health Department & Another – Respondent
Writ Petition No. 1936 of 2020
Decided On : 23-10-2020
JUDGMENT : R.K. Deshpande, J. 1. The entire world is under the shadow of unprecedented atmosphere and situation, which has arisen due to Coronavirus disease (COVID-19) pandemic outbreak. The disease has spread its tentacles all over the world, which is fighting a war against it. The World Health Organization (WHO) has declared COVID-19 as pandemic on 11-3-2020. Three major challenges were pitted and those were - (i) to prevent the spread-over of the disease, (ii) to detect the persons infected with the disease and its source, i.e. contact tracing, and (iii) to treat the patients of the disease. The WHO has issued interim guidance on 19-3-2020, laying down the laboratory test guiding principles for the patients, who meet the suspected case definition, and the protocol to meet the aforesaid three challenges. On similar lines, the Indian Council for Medical Research (ICMR) in the Department of Health Research, Government of India, has issued the guidelines on 4-4-2020, 9-4-2020, 17-4-2020, 24-4-2020 and 18-5-2020. The guidelines were also issued by the Government of India, Ministry of Health and Family Welfare, on 15-4-2020.
Fact of the Case:
On 30-4-2020, the Public Health Department of the State Government issued a notification containing reference to - (i) The Epidemic Diseases Act, 1897, (ii) The Disaster Management Act, 2005, (iii) The Maharashtra Essential Services Maintenance (Amendment) Act, 2011, (iv) The Maharashtra Nursing Home (Amendment) Act, 2006, and (v) The Bombay Public Trusts Act, 1950. On 21-5-2020, this notification was modified/amended by issuing another notification.
Finding of the Court:
The notifications in question violate the fundamental right of the petitioners, contained under Article 19(1)(g) of the Constitution of India, to practise any profession or to carry on any occupation, trade or business. The competency of the State Government to impose reasonable restrictions under Article 19(6) of the Constitution of India is examined.
Issues: 1. Whether the State Legislature is competent either to frame any law or issue any direction putting cap on or regulating the rates chargeable by the private hospitals for Non-COVID patients? 2. Whether the legislative field covered by Entry 6 in List II of Schedule VII of the Constitution of India, is occupied? 3. Whether the notifications in question can be treated to have been issued in exercise of the executive power under Articles 162 and 166 so as to consider the same, as having a ‘force of law’ under Article 13(3)(a) of the Constitution of India? 4. Whether the extent of challenge to the notifications in question can be justified on the basis of the provisions of the ED Act? 5. Whether the Parliament has enacted the Disaster Management Act, 2005 to provide for the effective management of disasters and for matters connected therewith or incidental thereto.
Ratio Decidendi: 1. The Legislature of the State is not competent under Entry 6 regarding public health and sanitation; hospitals and dispensaries in List II (State List) of Schedule VII under the Constitution of India either to frame any law or issue any direction putting cap on or regulating the rates chargeable by the private hospitals for Non-COVID patients. 2. The Maharashtra Essential Services Maintenance Act, 2017 and the Maharashtra Nursing Homes Registration Act, 1949, enacted by the State Legislature on the subject covered by Entry 6 of List II (State List) of Schedule VII under the Constitution of India, are in force and the legislative field on the subject is already occupied. 3. The notifications in question cannot be treated to have been issued in exercise of the executive power under Articles 162 and 166 of the Constitution of India, having a ‘force of law’, as contemplated under Article 13(3)(a) of the Constitution of India, to impose reasonable restrictions under Article 19(6) therein. 4. Neither the Epidemic Diseases Act, 1897 nor the Maharashtra COVID-19 Regulations, 2020 empower the State Government to issue the impugned directions in the notifications in question in relation to Non-COVID patients in 20% isolation and non-isolation beds in the private hospitals/health care providers and nursing homes. 5. The State Government is not competent to issue the impugned directions, as contemplated in the notifications in question, in respect of Non-COVID patients in exercise of the power under sub-section (1) of Section 65 of the Disaster Management Act, 2005.
Final Decision: The notifications dated 30-4-2020 and 21-5-2020, (called as ‘the notifications in question’), issuing the directions (called as ‘the impugned directions’) contained in clauses (4), (8), (9), (11), (12), (13), (14) and (15) to the extent applicable to Non-COVID patients in the private hospitals/health care providers and nursing homes, etc., are hereby quashed and set aside.
JUDGMENT :
R.K. Deshpande, J.
1. The entire world is under the shadow of unprecedented atmosphere and situation, which has arisen due to Coronavirus disease (COVID-19) pandemic outbreak. The disease has spread its tentacles all over the world, which is fighting a war against it. The World Health Organization (WHO) has declared COVID-19 as pandemic on 11-3-2020. Three major challenges were pitted and those were - (i) to prevent the spread-over of the disease, (ii) to detect the persons infected with the disease and its source, i.e. contact tracing, and (iii) to treat the patients of the disease. The WHO has issued interim guidance on 19-3-2020, laying down the laboratory test guiding principles for the patients, who meet the suspected case definition, and the protocol to meet the aforesaid three challenges. On similar lines, the Indian Council for Medical Research (ICMR) in the Department of Health Research, Government of India, has issued the guidelines on 4-4-2020, 9-4-2020, 17-4-2020, 24-4-2020 and 18-5-2020. The guidelines were also issued by the Government of India, Ministry of Health and Family Welfare, on 15-4-2020.
2. The only organ of the Constitution, which shouldered the responsibility to fight this war against COVID-19, is the executive, which was required to formulate the policy for the better prevention of the spread of the dangerous epidemic disease of COVID-19. The executives at the Centre and the States invoked the provisions of the Epidemic Diseases Act, 1897 (the ED Act). Section 2 therein empowers the State Government to take special measures and prescribe regulations as to dangerous diseases. The twin tests need to be satisfied to attract this provision - (i) that the State or any part thereof is visited by, or threatened with, an outbreak of any dangerous disease, and (ii) that the ordinary provisions of the law for the time being in force are insufficient for the purpose. It further empowers the State Government to take or require or empower any person to take any such measures and to prescribe temporary regulations to be observed by the public or any person or class of persons as it deems necessary to prevent the outbreak of such disease or to spread thereof. It further empowers the State Government to determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.
3. In exercise of the power conferred by sub-section (1) of Section 2 of the ED Act, the Maharashtra COVID-19 Regulations, 2020 (‘COVID Regulations’, for short), framed on 14-3-2020, declaring the ‘Coronavirus Disease’ as dangerous epidemic disease. Regulation 3 therein empowers the appointment of all Divisional Commissioners of Revenue Divisions and all Collectors and Municipal Commissioners as ‘Empowered Officer’ under sub-section (1) of Section 2 of the ED Act to take such measures as are necessary to prevent the outbreak of COVID-19 or the spread thereof within their respective jurisdictions. The respondent No.2- the Municipal Commissioner, Nagpur, is, therefore, an Empowered Officer for Nagpur. Regulation 4 therein states that all hospitals (Government and Private) should have separate corners for screening of suspected cases of COVID-19. Clause 10 under the said Regulation deals with the implementation of the containment measures stated therein, but not limited to these, in order to prevent spread of the disease.
4. The Parliament has enacted the Disaster Management Act, 2005 (the DM Act) to provide for the effective management of disasters and for matters connected therewith or incidental thereto. Section 20 therein deals with the constitution of State Executive Committee, Section 22 deals with the functions of the State Executive Committee and Section 24 deals with the powers and functions of State Executive Committee in the event of threatening disaster situation. Similarly, the District Authority is also constituted with the powers and functions mentioned under Sections 30 and 34 therein. Sect
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