The Supreme Court Thursday stayed the Gujarat High Court direction asking the state to forthwith come up with notification that any person found to be not wearing face mask in public place or violating social distancing norm be mandated to do community service at COVID-19 care facilities.
A bench headed by Justice Ashok Bhushan pulled up the state authorities for not implementing the COVID guidelines issued by the Centre as well as Gujarat government and said there is total lack of will in enforcing these measures. The apex court, while considering the submissions of Gujarat government which said that directions issued by the high court are harsh and disproportionate, observed that persons without face masks and those not following social distancing norms are violating the fundamental rights of other and authorities must ensure that guidelines are strictly implemented.
The problem is that there is no implementation of guidelines. There is total lack of will so far as implementation part is concerned. There are large gatherings, what the police is doing, said the bench, also comprising Justices R S Reddy and M R Shah. Solicitor General Tushar Mehta, appearing for Gujarat government, told the bench that there is problem in almost every state that people are not wearing masks and not following social distancing norm but probably this is not the solution.
Sometime, the cure is worse than the disease, he said, adding, harm of not wearing a mask is much less than sending the person to a COVID centre. The top court was hearing the appeal filed by Gujarat government against the December 2 interim order of the high court which had relied on the principle of community service and had passed several directions.
Finding substance in the submissions of Tushar Mehta, Solicitor General, we stay the directions issued in paragraph 13 of the judgment dated December 2, 2020, the bench said in its order. However, we direct that the state of Gujarat through Additional Chief Secretary, Home shall ensure that the guidelines issued by the Union of India as well as the state of Gujarat requiring wearing of masks and keeping social distancing are vigorously implemented and the police officials and other administrative authorities may ensure that the guidelines are scrupulously followed and whosoever is found violating the guidelines, appropriate action be taken against such persons including realization of fine, the bench said.
It issued notice to one Vishal S Awtani, on whose plea the high court had issued a slew of directions, seeking his response on the appeal filed by the state and posted the matter for hearing in the second week of January. In its appeal, the state has said that the high court, while relying on the concept of principle of community service, has passed certain directions which are firstly judicially unmanageable and secondly have no authority of law. During the hearing conducted through video-conferencing, Mehta told the bench that issue of people not wearing face masks and non-adherence of guidelines on social distancing has to be dealt with across the country.
How thousands of persons are allowed to gather in marriage ceremonies, the bench asked. When Mehta said something drastic is needed, the bench observed, There is no implementation of guidelines. Everybody is moving without masks in markets, malls, marriages and ceremonies.
The solicitor general said that guidelines issued by the Centre under the Disaster Management Act and also by Gujarat have to be followed by all. He said in Gujarat, there is a fine of Rs 1,000 on those who are violating the guidelines by not wearing masks in public places and the amount collected as fine so far is phenomenal. He (Mehta) submits that the guidelines of the Union of India and the state of Gujarat had to be compulsorily followed and implemented but directions issued by the high court in paragraph 13 are harsh and disproportionate. He further submits that in event the directions are implemented that may cause health issues to those who are subjected to aforesaid directions, the bench noted in its order.
When Mehta urged the court that direction issued by the high court be kept in abeyance, the bench observed, We do not want to pass a blanket interim order. The solicitor general suggested that authorities in all the states may be asked to formulate a plan of action on how they will implement these guidelines and they may also think of increasing the fine amount.
The only difficulty is even after increasing the fine, who will implement this. There are some lapses somewhere and you have to find it out, the bench said. The high court had said that, Any person found to be not wearing or using a face mask/covering in a public place and/or violating the COVID protocol of social distancing, shall be mandated to do community service at any COVID care centre run by the local authorities. Such mandate of community service to be implemented for all violators without any discrimination favourable or otherwise, it had directed.