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High court unhappy as Maharashtra continues to bar unjabbed from public transport

The court says the government should have considered citizens’ constitutional right to travel freely, but disposes of petitions without quashing the order mandating vaccines

Written by Omkar Gokhale | Mumbai |
March 2, 2022 6:30:24 pm
Bombay High Court (File)

The Bombay High Court on Wednesday expressed displeasure over a Maharashtra government decision to continue to bar unvaccinated and partially vaccinated passengers from public transport, and lamented that the government did not “respect” the sentiments expressed by the court when it had first heard petitions challenging the vaccine mandates for local trains, malls and workplaces in the Mumbai Metropolitan Region.

“It is very unfortunate. You are insisting everyone should get vaccinated. There is no question of personal choice available? You create a situation where the public have to take vaccines, or otherwise they are deprived of these facilities,” said Chief Justice Dipankar Datta.

As the state’s counsel submitted that the Covid task force had opined that the restrictions could not be lifted at this stage, the bench also comprising Justice Makarand S Karnik said, “As doctors they can advise, but what about the fundamental rights of citizens? We must express that this being a PIL (public interest litigation), we committed a mistake by confining [ourselves] only to the challenge in it, and in view of [our] suo motu powers, we should have set aside revised orders.”

The bench said it should have struck down the government’s previous order given the “gross violations in imposing restrictions since August 10, 2021”. “However, we had reposed hope and trust that the State Executive Committee (SEC) would take a decision which is reasonable and not in derogation of the fundamental rights of citizens protected by Article 19 (1) (d) [to move freely throughout India],” the judges said. “The SEC, instead of respecting the observations that we had made in our order, has insisted on only vaccinated people being allowed to avail of public transport, despite the fact that presently in Mumbai and adjoining areas, almost every activity is being performed as in the pre-pandemic days and that normalcy has been restored,” they added.

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“We made a mistake and expressed hope…that the government would take the decision. Even in the DGP matter, we could have passed an order. This is the lesson that the government has given to the court. You do not respect the court’s sentiments. We will remember this next time,’’ said Justice Datta.

The government’s March 1 decision to continue the Covid-19 restrictions, which was not publicised till Wednesday’s hearing, was taken based on a February 25 meeting of the SEC formed under the Disaster Management Act. During a hearing on February 22, the bench had observed that the previous order mandating vaccines had no legal sanctity and urged the government to revise it.

However, the court did not quash the restrictions. It disposed of the two public-interest petitions, saying the petitioners would now have to file another petition since the new order had been published under the Disaster Management Act. “We also make it clear that the order of disposal shall not preclude the state from publishing the order dated March 1,” the bench said.

Senior advocate Anil Anturkar, appearing for the government, argued that the state could impose reasonable restrictions as per the Constitution.

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