The Maharashtra government's order of permitting only those fully vaccinated against COVID-19 to travel in local trains in Mumbai is "illegal" and has brazenly affected the fundamental rights of citizens, said the Bombay High Court on Tuesday.
A division bench of Chief Justice Dipankar Datta and Justice MS Karnik said the orders signed by the government's then chief secretary Sitaram Kunte were in clear diversion from the prescribed procedure under the Disaster Management Rules.
"The orders passed by the former chief secretary were in clear diversion of the prescribed procedure. Due to the illegal orders, the fundamental rights of citizens were brazenly affected," the High Court said.
The court was hearing a bunch of public interest litigations challenging the prohibition on use of local trains in the city by unvaccinated people, saying that such a prohibition was illegal, arbitrary and in breach of the citizens' fundamental right to move freely across the country.
Niles Ojha, the counsel for one of the petitioners in the case, argued previously that the state failed to apply its mind while coming up with the SOPs and that it discriminated between the vaccinated and unvaccinated people even as neither the Centre nor the Maharashtra government had made vaccination mandatory.
The bench pointed out that the number of people who tested positive for coronavirus in Mumbai on Monday was at the lowest in 20 months.
"We hope and trust that the state executive committee takes an appropriate decision on February 25, keeping in mind the declining trend of COVID-19 cases," the High Court said and posted the matter for further hearing on February 28.
Earlier in January, the state government had told the Bombay High Court the prohibition on travel by local trains for those not fully vaccinated is legal and reasonable. "This is a reasonable restriction imposed on the citizen's fundamental right and such prohibition has been imposed in the larger public interest, for their own benefit," government's lawyer Anil Anturkar had said.
On Tuesday, Mr Anturkar, informed the court that the three orders in question (issued on July 15, August 10 and August 11, 2021) now stand withdrawn.
"We may withdraw the prohibition (on use of local trains by unvaccinated people or those who have taken one dose) or may impose it based on the present COVID-19 situation. At this stage, I cannot say anything further," he added.
On Monday, Mumbai reported 96 new COVID-19 cases, the lowest single-day rise after April 17, 2020, as per the city civic body.
The High Court bench noted that the orders breached the state disaster management rules and were issued in his individual capacity as chairperson of the state executive committee without there being any deliberation with the other members.
"The chairperson has the powers to pass such orders only in emergency situations. But, we opine that none of the three orders rendered an emergent situation warranting the former chief secretary to pass such orders," the High Court said.
The bench had on Monday asked the government if it was willing to withdraw the three circulars as they were not passed following proper procedure.
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