“He made a huge mistake by trusting that the state govt & state executive committee” -CJ/Bombay HC

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In the hearing, Bombay High Court Chief Justice Dipankar Datta said he made a huge mistake by trusting that the state government and state executive committee would respect the advice/direction given by the bench to them, regarding removing restrictions which have been imposed on unvaccinated people to travel. Instead of following the court’s directions, the state issued a new order which continues to violate the fundamental rights of the citizens.

The Chief Justice said that he should have exercised his suo moto powers and quashed all the state orders which have been issued since august, as they are all illegal and violate the fundamental rights of the citizens, instead of giving a chance to the state. He said that he will not forget this and that the court would remember this breach of trust in the future.

Chief Justice reprimanded the Counsel for government by stating that on one hand you (State) say that vaccination is voluntary but indirectly making it is mandatory to access public facilities.

Chief justice said, “it is very unfortunate that you (State) are insisting everyone should get vaccinated. There is no question of personal choice available!”

The bench asked the petitioners to file a fresh petition challenging the new order, which we will be doing very soon, and the matter will be up for hearing in court soon as the judges have understood the urgency behind it, which is why they were taking this matter up almost daily since the last few hearings.

“This is a huge victory for all of us in Maharashtra, as the Chief Justice has set a precedent in law by declaring all of the orders which the state has passed since August regarding vaccine discrimination as ILLEGAL.”

It is only a matter of time before they are officially struck down in court, until then we can all use this order to exercise our fundamental rights while travelling, going to malls, offices, etc. All authorities have no obligation to follow any of these orders as the Chief Justice has declared that they are illegal, it is only due to technical reasons that the order could not be set aside in today’s hearing.

Another huge point of victory: Fearing prosecution, the State of Maharashtra has removed the provision of fines for masks and vaccines in their latest order, after Senior Advocate Nilesh Ojha mentioned in Bombay HC there is no provision for fines in the Disaster Management Act, 2005.

Apart from this, there are many other gross illegalities in this order, which will be challenged and officially quashed soon.

Read the full order from the Judges attached here : 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

PUBLIC INTEREST LITIGATION NO. 84 OF 2021

Feroze Mithiborwala } Petitioner
versus
State of Maharashtra and Ors. } Respondents

WITH

PUBLIC INTEREST LITIGATION NO. 85 OF 2021

Yohan Tengra } Petitioner
versus
State of Maharashtra and Ors. } Respondents

CORAM: DIPANKAR DATTA, CJ & M. S. KARNIK, J.

901-PIL.84/2021 & 85/2021.
DATE: MARCH 2, 2022

P.C.:

1. Mr. Anturkar, learned senior advocate for the respondents, has placed before us an order dated 1st March 2022 signed by the Chief Secretary, Department of Disaster Management, Relief and Rehabilitation and Chief Executive Officer, State Executive Committee.

2. Although such order has not yet been published, as stated by Mr. Anturkar, it reveals that the State Executive Committee has decided to maintain the impugned earlier restriction that public transport cannot be availed of by those who are not fully vaccinated. This order, according to Mr. Anturkar, is based on the minutes of the meeting of the State Executive Committee (hereafter “the Committee”, for short) chaired by the Chief Secretary to the Government of Maharashtra on 25th February 2022.

3. In our order dated 22nd February 2022, we had in no uncertain terms observed that the previous orders of the State Government imposing restrictions on user of public transport had no sanction of law and that in keeping with the improving situation, it would be eminently desirable if the Committee takes a decision which would effectively put a quietus to the issues raised in the PIL petitions. The hope and trust reposed by us in the Committee that it would take a decision, which is reasonable and not in derogation of the Fundamental Rights of the citizens guaranteed by Article 19(1)(d), stand belied. We were utterly mistaken. The Committee, instead of respecting the observations that were made in the order dated 22nd February 2022, has once again insisted on only those who are vaccinated to avail public transport despite the fact that presently in Mumbai and its adjoining areas almost every activity is being performed as in the pre-pandemic days and normalcy has been restored in fair measure. In hindsight, we feel that having regard to the gross violations of the Disaster Management Act, 2005 (hereafter “the Act”, for short) and the rules framed thereunder in imposing restrictions since 10th August 2021, it would have been appropriate if we had struck down the further orders passed in the name of the State Government post August, 2021 by the Chief Secretary, Government of Maharashtra in exercise of our suo motu powers instead of, in accordance with judicial discipline, permitting the Committee to take a fresh decision. This decision of the Committee, in the circumstances, is unexpected to say the least.

4. Be that as it may, since a new order has been issued under the Act maintaining the same restriction as before, publication of which is in contemplation, we are of the considered opinion that nothing further survives for decision on these two PIL petitions and that the petitioners herein, if they feel aggrieved by such order (as and when it is published), ought to subject such order to challenge in fresh proceedings. Granting liberty to the petitioners to pursue their remedy in accordance with law, we dispose of these PIL petitions. No costs.

5. Since we are not disposing of the PIL petitions on merit, all contentions that have been raised by the petitioners are kept open.

6. Copy of the order dated 1st March 2022 and the minutes of meeting of the Committee dated 25th February 2022 shall be retained with the records and marked ‘X’ for identification.

7. The respondents are granted liberty to publish the order dated 1st March 2022.

8. We direct Mr. Kakade, learned Government Pleader to supply a copy of the said minutes of the meeting of the Committee to the petitioners’ advocates once the order dated 1 st March 2022 is published and made available to the public.

901-PIL.84/2021 & 85/2021