While dismissing a petition by four advocates challenging the Delhi government’s order to wear masks as part of Covid-19 protocol even while travelling alone in a personal vehicle, the Delhi High Court as recently as on April 7, 2021 has observed without mincing any words in a strongly worded judgment titled Saurabh Sharma vs Sub-Divisional Magistrate (East) & Ors. in W.P.(C) 6595/2020 & CM APPL. 23013/2020 that, “Advocates as a class owing to their legal training have a higher duty to show compliance especially in extenuating circumstances such as the pandemic. Wearing of masks cannot be made an ego issue.” If advocates who are the biggest upholders of law and who are the officers of the court and the real crown of the judicial system themselves start disregarding the rule of wearing masks at a time when the corona pandemic has engulfed nearly all the countries and has killed more than lakhs of people in India itself, then what message will go out to others? People in general will also start emulating the lawyers and this can have a cascading effect in spreading this deadly virus all across! So it merits no reiteration that complacency of any score on this front cannot be condoned under any circumstances!
Needless to say, this alone explains why a Single Judge Bench of Justice Pratibha M Singh who authored this extremely brilliant, brief, bold and balanced judgment too underscored that due to their legal training, advocates and lawyers were expected to aid measures to contain the pandemic rather than “questioning the same”. It is the bounden duty of all the lawyers all across the country to adhere unflinchingly to what Justice Pratibha M Singh of the Delhi High Court has held so elegantly, eloquently and effectively! There can be no denying it.
To start with, a Single Judge Bench of Justice Pratibha M Singh of the Delhi High Court sets the ball rolling by first and foremost pointing out in para 1 that, “These are four writ petitions filed challenging the imposition of fine of Rs.500/-, on the Petitioners, for non – wearing of face masks while travelling alone in a private car. The brief facts of each of the cases are captured below.”
While elaborating on the petitioner’s case, the Bench then puts forth in para 2 that, “In W.P.(C) 6595/2020, the Petitioner’s case is that he is a practicing advocate for the last 20 years. On 9th September, 2020, at about 11.00 A.M., he was driving a Honda City DL 13CC 1479, and was stopped by the police near Geeta Colony, New Delhi. It is not disputed that he was travelling alone in his car. After the car was stopped, an Executive Magistrate, along with a Police Constable and a Delhi Police Inspector, informed the Petitioner that a fine of Rs. 500/- is being imposed on him for not wearing a mask in a public place. The Petitioner challenged such imposition of fine before the officials, on the ground that since he was travelling alone in his car, the said car does not constitute a public place and would be a private zone. Accordingly, it is prayed that the challan bearing challan no. 2993, dated 9th September, 2020, be quashed and the amount of Rs. 500/- be refunded. In addition, compensation of Rs.10,00,000/- is sought on the ground of alleged mental harassment publicly caused to the Petitioner.”
To put things in perspective, the Bench then elucidates in para 3 stating that, “In W.P.(C) 8455/2020, the facts are that the Petitioner is a lawyer who was stated to be on his way to his chambers at Tis Hazari Courts, around 12.00 noon on 9th August, 2020. He was driving his privately owned car, a Maruti Suzuki Swift and was stopped near Aruna Asaf Ali Hospital, Rajpur Road, Civil Lines by the Police. The Petitioner was in his car travelling alone, with his mask hanging on his face, from one of his ears. The case of the Petitioner is that since he was in his car alone, he had not put the face mask on and that he had intended to wear the mask as soon as he stepped out of the car. It is highlighted that the four windows of the Petitioner’s car were closed. When the police official stopped his car, he was informed that the non-wearing of mask by him is in violation of the Delhi Epidemic Diseases (Management of COVID-19) Regulations, 2020 (hereinafter referred to as ‘the Regulations of 2020’) and a sum of Rs. 500/- was imposed on him as fine. In this petition, apart from quashing of challan bearing challan no. A22062, dated 9th August, 2020, a declaration is sought to the effect that privately owned cars are private places for the purpose of the Regulations of 2020. Apart from refund of the amount of Rs. 500/- paid by the Petitioner as fine, a compensation of Rs. 5,00,000/- is sought in the present petition for mental harassment.”
While continuing in a similar vein, the Bench then enunciates in para 4 stating that, “The Petitioner in W.P.(C) 8588/2020 is also a practicing advocate who states that he was crossing Vikas Marg area near Laxmi Nagar Metro Station on 20th August, 2020 in his privately owned car, with all windows of the car closed. However, officials of the Delhi Police stopped his car on the ground that he was not wearing a face mask in his car. Similarly, an amount of Rs. 500/- was imposed on him as fine for violations of the Regulations of 2020. In this case, a direction is sought that the Respondent-Authorities ought not to fine people for not wearing a face mask while in their own car. Refund of Rs. 500/- is sought, along with compensation of an unascertained sum.”
Of course, the Bench then states in para 5 that, “In W.P.(C) 9408/2020, the Petitioner is a lawyer stated to be practicing at Karkardooma Courts, New Delhi. On 25th October, 2020, he was travelling in his i-10 Grand bearing no. DL8CAE1725, along with his wife and had reached a spot in front of the of D.C. Office, Nand Nagri at about 1.50 P.M. It is stated that a Civil Defence Personnel forced him to stop his car. After the Petioner’s car was stopped, the Civil Defence Personnel, along with a member of the Enforcement Team of SDM, Shahdara, informed him that since he is not wearing a face mask but only a cotton safa/dupatta/scraf around his mouth and nose, he would be liable to pay a fine of Rs. 500/-. In this petition also, quashing of the challan dated 25th October, 2020 is prayed for. Along with the quashing of the challan, a refund of Rs.500/- paid as fine is prayed for, as also compensation of Rs. 10,00,000/- for the harassment and insult allegedly caused to the Petitioner, and for alleged misuse of legal provisions to exhort Rs. 500/- from the Petitioner.”
As a corollary, the Bench then holds in para 6 that, “From the facts of the above four cases, it is clear that in two of the cases, the Petitioners were not wearing any face masks; in one of the cases case, the Petitioner had a mask which was dangling from one of his ears; and, in the fourth case, the Petitioner was not wearing a mask, but was wearing a safa/dupatta/scraf covering his nose and mouth.”
As we see, the Bench then while elaborating on the questions arising in these writ petition states forth in para 7 that, “The questions which arise in these writ petitions are three-fold. First, whether it is compulsory for persons driving alone in their own private cars to wear face masks and the manner in which such masks ought to be worn. Secondly, if as per the various guidelines, orders and notifications issued, the fine imposed on the Petitioners is valid and legal. Thirdly, if any compensation is liable to be granted.”
After hearing the submissions from both sides, the Bench then observes in para 23 that, “From the submissions made herein above, broadly three issues arise –
i. What is the ambit of the power to issue guidelines under the provisions of EDA and DMA?
ii. Whether under the guidelines which have been issued under the April Order by the DMA and June Notification, wearing of face masks is compulsory even when an individual is travelling in a privately owned car. If so, in what manner is the face mask to be worn?
iii. Whether the Executive Magistrates who have issued the challans and imposed the fines of Rs. 500/- each were properly authorised in law?”
For the sake of clarity, the Bench then states in para 24 stating that, “The EDA is a statute enacted for the purposes of better prevention of the spread of dangerous epidemic diseases. Though, the said Act had been enacted almost 130 years ago, there have been amendments made to it from time to time. However, with the outbreak of the COVID-19 pandemic, various provisions were introduced by the Epidemic Diseases (Amendment) Ordinance, 2020 and thereafter the amending Act 34 of 2020, which came into effect on 22nd April, 2020.”
While continuing further, the Bench then notes in para 25 that, “Under the EDA, Sections 2 and 2A confer powers on both the State Government and the Central Government, respectively, to prescribe such regulations as may be necessary for both the purposes of the prevention of disease, as well as, the spread of disease. The said regulations once prescribed would have to be observed by the public or any persons or class of persons upon whom the same are imposed. The violation of regulations prescribed either by the State Governments or the Central Government results in penal consequences as given under Section 3 of the EDA. Under Section 2A of the EDA, the Central Government also takes certain measures in respect of vehicles such as buses, trains, goods vehicles, ships, vessels, aircrafts etc. for the purpose of preventing the outbreak of disease or the spread thereof. The relevant provisions of the EDA read as under –
“2. Power to take special measures and prescribe regulations as to dangerous epidemic disease.
(1) When at any time the (State Government) is satisfied that (the State) or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the (State Government), if (it) thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as (it) shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.
(2) In particular and without prejudice to the generality of the foregoing provisions, the (State Government) may take measures and prescribe regulations for-
(b) the inspection of persons travelling by railway or otherwise, and the segregation, in hospital, temporary accommodation or otherwise, of persons suspected by the inspecting officer of being infected with any such disease.
2A. Powers of Central Government. –
When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, (the Central Government may take such measures, as it deems fit and prescribe regulations for the inspection of any bus or train or goods vehicle or ship or vessel or aircraft leaving or arriving at any land port or aerodrome, as the case may be, in the territories to which this Act extends and for such detention thereof, or of any person intending to travel therein, or arriving thereby, as may be necessary.)””
Simply put, the Bench then states in para 26 that, “The DMA contemplates the establishment of the National Disaster Management Authority, the State Disaster Management Authority as also, the State Executive Committee and the District Management Authority. These bodies are vested with various powers under the Act for the management of disasters. Under Section 24 of the DMA, the State Executive Committees have various powers and functions that can be taken for preventing or combating disruptions or dealing with effects of any threatening disaster situation.”
To say the least, the Bench then stipulates in para 27 that, “Under Section 35 of the DMA, the Central Government is empowered to take all such measures as it deems necessary for the purpose of disaster management. Similarly, powers have also been vested with every Ministry or Department of Government of under Sections 36 and 37 of the DMA.”
Furthermore, it is then stated in para 28 that, “Under Section 38 of the DMA, the State Government shall take measures as may be required for the purpose of disaster management. Similarly, all Departments and Ministries of the State are also vested with various powers and functions.”
More commendably, the Bench then observes in para 29 that, “In the background of the outbreak of COVID-19 pandemic, the DDMA issued April Order dated 8th April 2020. In the said order, the following measures were directed for being observed by the members of the public.
“Whereas, Delhi Disaster Management Authority (DDMA) is satisfied that the NCT of Delhi is threatened with the spread of COVID-19 epidemic, which has already been declared as a pandemic by the World Health Organisation and has considered it necessary to take effective measures to prevent its spread in NOT of Delhi;
And whereas, Govt. of India has notified lockdown all over India, including the territory of NCT of Delhi, w.e.f. 25th March, 2020 till midnight of 14th April, 2020 to curb the menace of “COVID-19”;
And whereas, Delhi Disaster Management Authority has issued various orders/ instructions from time to time to all concerned authorities to take all required measures to appropriately deal with the situation;
And Whereas, it is imperative to strictly observe the lockdown and isolation measures to contain the spread of COVID-19 in NCT of Delhi.
And whereas it has been observed in some studies that wearing of facial masks can reduce the spread of corona virus substantially, from and to persons coming in contact with each other, apart from compulsory social distancing measures.
And whereas it has become imperative that in the larger public interest, wearing of mask by any person who is moving in any public place is essential.
Now, therefore, in exercise of powers conferred under Section 22 of the Disaster Management Act, 2005, the undersigned, in his capacity as Chairperson, State Executive Committee. GNGTD, hereby directs the following measures:
1. All persons moving for whatsoever purpose and under whatever reason/authority in public places, like street, hospital, office, markets must wear 3-ply mask or cloth mask compulsorily.
2. Any person moving around in his personal and official vehicle must be wearing there masks compulsorily.
3. Any person working at any site/office/workplace must wear the masks as mentioned above.
4. No person/officer will attend any meeting/gathering without wearing these masks as mentioned above.
5. These masks may be standard mask available with the chemist or even homemade washable masks and can be reused after proper washing and disinfecting them.
It shall 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 will be punishable under the section 188 of Indian Penal Code (48 of 1860) and will be strictly penalised. These instructions must be followed very scrupulously.””
What follows next is then stated in para 30 that, “Thereafter vide the June Notification dated 13th June, 2020, the Regulations of 2020 were notified. As per the said Regulations, ‘Authorised Persons’ under the EDA included the District Magistrate and wearing of face masks/cover was made compulsory in all public place/work places. The operative portion of the said notification are set out below: –
Whereas, the COVID-19 outbreak has been notified as a “Disaster” being a critical medical condition and pandemic situation under the “Disaster Management Act, 2005.”
And whereas the Delhi Disaster Management Authority has issued detailed guidelines from time to time to contain the spread of COVID-19,
And whereas, instances have come to notice that above guidelines are not being followed in their letter and spirit,
And whereas, rising numbers of COVID-19 cases in NCT of Delhi warrant stricter compliance with the Various directives issued by the Central Government and the Government of NCT of Delhi from time to time, pursuant to guidelines of National Disaster Management Authority and the Delhi Disaster Management Authority;
And whereas, to enforce these directives, it has now become imperative to impose penalties by way of fines for a deterrent effect;
Now, therefore, in exercise of the powers conferred under Section 2 of The Epidemic Disease Act, 1897 and also in view of the guidelines issued by Delhi Disaster Management Authority, Hon’ble Lt. Governor, Delhi is pleased to issue the following regulations;
1. These regulations shall be called The Delhi Epidemic Diseases, (Management of COVID-19) Regulations, 2020.
2. “Epidemic Disease” in these regulations shall mean COVID-19 (Corona Vims Disease2019).
3. “Authorised Persons” under this Act shall and include
a. Secretary (Health & FW), GNCTD;
b. Director General Health Services (DGHS), GNCTD;
c. District Magistrate,
d. Chief District Medical Officer (CDMO),
e. Sub Divisional Magistrate (SDM) and District Surveillance Officer (DSO);
f. And such officers as may be authorized by Department of Health & Family Welfare, Government. Of NCT of Delhi, District Magistrates and Zonal Deputy Commissioners of respective Municipal Corporations of Delhi;
g. And the officers of the rank of Sub Inspector and above of Delhi Police.
h. The above Authorized Persons shall be empowered to impose a fine of Rs. 500/- for the first time and a further fine of Rs. 1000/- for the repeated offence, respectively for violating the directives/guidelines pertaining to the following: –
a. Observation of quarantine rules.
b. Maintaining of social distancing,
c. Wearing of Face mask/cover in all public places /workplaces.
d. Prohibition of spitting in public places.
e. Prohibition on consumption of paan, gutka, tobacco etc in public places.
5. In case any person fails to pay the penalty on the spot, action under Section 188 IPG shall be taken against him by the authorised police officer on receipt of a complaint from any Authorised Persons or on his own.
6. Protection to Authorized Persons under the Act: No legal suit or proceedings shall lie against the Authorized Persons for anything done or intended to be done in good faith for ensuring the stricter compliance under these regulations unless proved malafide/otherwise.
7. These regulations shall come into force immediately and shall remain valid for a period of one year from the date of publication of this notification.”
What’s more, it is then stated in para 31 that, “After the issuance of the April Order, as also the Regulations of 2020, various SDMs/DMs, in exercise of their powers under Regulation 3(f) of the Regulation of 2020, delegated powers to Executive Magistrates, empowering such Executive Magistrates to impose fines, under Regulation 3(h) of the Regulations of 2020. One such order dated 15th July, 2020 issued by the SDM, East, empowering the Executive Magistrates of the East District, New Delhi to impose fine is set out below: – “In exercise of powers conferred under Regulation 3 (f) of “The Delhi Epidemic Diseases (Management of COVID-19) Regulations, 2020” issued vide Notification No.F.5l/DGHS/PH-IV/COVID19/prescribe/13087-336 dated 13.06.2020, all the Executives Magistrates of East District are hereby authorized to impose fine and take penal action as envisaged under the aforesaid Regulations.
This has the approval of District Magistrate (East).”
No doubt, it is then rightly pointed out in para 32 that, “The three questions that have arisen are to be, accordingly, determined in the background of the above Orders and Notifications passed by the appropriate authorities.”
Also, it is a no-brainer that it is then aptly observed in para 33 that, “A perusal of the provisions of EDA and DMA shows that the central and state governments are vested with broad powers as under:
• To take all necessary steps for the purpose of ensuring prevention of the outbreak of any pandemic or further spreading of such pandemic.
• To take any steps for mitigation of the effects of any pandemic or disaster.
• To take all necessary measures to prevent disaster from taking place.
• To take all steps necessary for the effective response during the impending disaster.
• To work in close corporation with each other right from the various administrative levels at the Central Government, State Governments, District Authorities and Local Authorities.
• To allocate funds required for taking such necessary steps.
• To consistently maintain a state of preparedness for dealing with outbreak of any pandemic or disaster.
• To provide for necessary relief measures in case of a outbreak of any pandemic or disaster.”
Most significantly, the Bench then remarkably and rightly puts forth in para 51 that, “The moot question to ask is, therefore, whether a person travelling alone in a moving car or vehicle can be exposed to other persons and if the answer to this in an affirmative, then the car or private vehicle would be a public place for the purpose of the present case. A person travelling in a vehicle or car even if he is alone, could be exposed to the virus in various ways. The person may have visited a market, or workplace, or hospital or a busy street, prior to entering the car or vehicle. Such person may be required to keep windows open for the purposes of ventilation. The vehicle may also be required to be stopped at a traffic signal and the person could purchase any product by rolling down the window. The person may thus, be exposed to a street side vendor. If a person is travelling in the car alone, the said status is not a permanent one. It is merely a temporary phase. There could be other occupants in the car prior to the said phase and post the said phase. There could be elderly family members or children who may be picked from the school or even simply friends or colleagues may travel in the car in the immediate future. Such persons can also be exposed to the virus if the occupant was not wearing the mask. The droplets carrying the virus can infect others even after a few hours after the occupant of the car has released the same. There are several possibilities in which while sitting alone in the car one could be exposed to the outside world. Thus, it cannot be said that merely because the person is travelling alone in a car, the car would not be a public place.”
No less significant is what is then stated in para 52 that, “A mask is a `Suraksha kavach’ for preventing the spread of the corona virus. It protects the person wearing it, as also the persons to whom the person is exposed. Since the inception of the pandemic, wearing of masks has been one measure that has saved millions of lives. In fact, wearing of a mask even in one’s own homes is encouraged if there are elderly persons or persons suffering from co-morbidities. A vehicle which is moving across the city, even if occupied at a given point in time by one person, would be a public place owing to the immediate risk of exposure to other persons under varying circumstances. Thus, a vehicle even if occupied by only one person would constitute a ‘public place’ and wearing of a mask therein, would be compulsory. The wearing of a mask or a face cover in a vehicle, which may be occupied by either a single person or multiple persons is thus, held to be compulsory in the context of the COVID-19 pandemic.”
Quite pertinently, the Bench then observes in para 53 that, “The last question that has been raised is in respect of exercise of powers. A perusal of Regulations of 2020 shows that authorised persons under the Regulations would include a District Magistrate, Sub-Divisional Magistrate, any officer of health department, who may be authorised, or of the State Government. It also includes officials, who hold the position of a Sub-Inspector or above, in the Delhi Police. In the present case, the challans have been issued either by the District Magistrate or by the Executive Magistrate or by the Sub-Inspector concerned. For example, in the East district, the Executive Magistrate has been duly authorised by the District Magistrate to issue challans vide order dated 15th July, 2020 issued by the SDM, Headquarters, East. The definition of authorised persons being inclusive and expansive in nature, District Magistrates are also vested with powers to further authorise any officers to issue challans.”
Truly speaking, the Bench then adds in para 55 while justifying the rejection of the prayer for quashing of the challans that, “In the context of the pandemic and wearing of face masks being compulsory, all requisite measures have to be taken by the authorities for enforcement of the same. An interpretation that furthers the purpose of prevention of the disease and controlling the spread of the disease will commend with the Court rather than the opposite. The challans have been issued by duly authorised officers. The prayer for quashing of the challans is thus not sustainable.”
Without mincing any words, the Single Judge Bench of Justice Pratibha M Singh then as a word of advice adds in para 56 that, “This Court would also like to add that all the four Petitioners in these cases, being advocates/lawyers ought to recognise and assist in implementation of measures to contain the pandemic, rather than questioning the same. Advocates as a class, owing to their legal training have a higher duty to show compliance especially in extenuating circumstances such as the pandemic. Wearing of masks cannot be made an ego issue. Compliance by advocates and lawyers would encourage the general public to show greater inclination to comply. The duty of advocates and lawyers is of a greater magnitude, especially in the context of the pandemic for enforcement of directives, measures and guidelines issued under the Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005.”
Finally, it is then held in the last para 57 that, “In view of the above, this Court does not find any merit in the writ petitions. The petitions are accordingly dismissed.”
To sum it up, Justice Pratibha M Singh of the Delhi High Court has so ably articulated the correct legal position on wearing of masks that no doubt is left on it with entire picture being clear and it is the bounden duty of all citizens with advocates being no exception that compliance duty for Covid-19 mask norm is higher for advocates and it cannot be an ego issue. All advocates as also others must comply with accordingly! It is in our own best interest that we wear mask and follow all other safety norms that helps to ensure that not only we ourselves are protected but others also are protected as the corona virus then cannot spread through us if we follow all the safety norms carefully!
Sanjeev Sirohi