[COVID-19] Fundamental rights of citizens abrogated because of certain illegal orders: Bombay High Court

The Bombay High Court on Tuesday remarked that certain orders issued by the former Chief Secretary of Maharashtra restricting persons not fully vaccinated against COVID-19 from travelling in public transport abrogated their fundamental rights [Feroze Mithiborwala v. State of Maharashtra & Ors]..During the hearing of the public interest litigation challenging the State's orders of July 15 and August 11, 2021 and the Standard Operating Procedure (SOP) of August 10, 2021, Senior Advocate Anil Anturkar informed the Court that the State had taken a decision to withdraw the orders.However, the superseding orders were still in force and the State Executive Committee (SEC) was going to meet to review these orders, Anturkar submitted..On this submission, a Bench of Chief Justice Dipankar Datta and Justice MS Karnik expressed hope and trust that the SEC will keep in mind the statistics in the State before taking an appropriate decision for lifting restrictions.“We hope and trust that in keeping with the present situation and the observations, the SEC will take an appropriate decision for lifting of restrictions considering all aspects of the matter including the particular circumstance that fundamental rights of a section of the citizens were abrogated because of certain illegal orders passed by the chairperson of the SEC earlier”, the Bench recorded in the order..Anturkar assured the Bench that the SEC will review the orders on February 25, after taking into consideration its observations, the factual status of COVID-19 pandemic and various directions received from the Central government and the COVID-19 Task Force. The SEC may promulgate new comprehensive directives, if needed, superseding all previous ones, Anturkar emphasised.“Although it is not the function of the Court to direct SEC to take a decision in any particular direction, it would be eminently desirable if SEC takes a decision on February 25, 2022, which effectively puts a quietus to the issues raised in these PIL petitions,” the Bench suggested..The Court emphasized that the orders issued by former Chief Secretary Sitaram Kunte from time to time as the Chairperson of the SEC imposing restrictions during the second wave were without any deliberation with other members of the Committee who happened to be bureaucrats.“…none of the orders recorded any emergent like situation warranting the Chairperson of the Committee to pass an order without waiting for deliberations with the other members,” the order stated..The Bench recorded that upon being satisfied that there was abrogation of fundamental rights under Article 19(1)(d) of the Constitution, it had made certain oral observations in open court about the manner in which the orders came to be passed without following the relevant law..Advocates Nilesh Ojha, Abhishek Mishra and Tanveer Nizam appeared for petitioners in the PIL..During an earlier hearing of the petition, the Bench emphasised that the COVID-19 situation in the State has improved, and the manner in which the situation was handled by the State government was commendable.However, the present restrictions on use of public transport were unwarranted and brought bad press, the Court observed..[Read order]