Analysis: Karnataka HC on Social Distancing Norms

Reading time: 8-10 minutes.

India went into a lockdown owing to the novel coronavirus on March 24^th 2020. Since then we have seen that the number of COVID-19 cases does not seem to stop. With the passing time, the Government enabled a low transition to reopen after the lockdown. For the same, the Central Government laid down two National Directives for COVID-19 Management, one on May 30^th and the other on June 29^th. The Karnataka Government too issued guidelines called the Standard Operating Procedure, which listed social distancing and safety measures for various occasions during the pandemic. Violation of the aforementioned provisions is subject to legal action. There have been allegations of the violation of safety and social distancing orders by public and political figures in Karnataka. The same was questioned before the Karnataka High Court by the way of a Public Interest Litigation.

Facts of the Issue

The aforementioned Plea was filed as two applications by two advocates. The first by Advocate G.R. Mohan, and the second by Advocate Puthige Ramesh. There were three allegations highlighted in these applications.

First being, that the former Chief Minister, a highly influential man in the State of Karnataka, organised a marriage ceremony for his family member, without keeping in mind social distancing provisions. The alleged public figure in question was the former Chief Minister H.D. Kumaraswamy. Photos and videos of the wedding went viral, depicting a violation of the social distancing guidelines like not wearing masks and lockdown norms like large gatherings. However, Kumaraswamy claimed that no one from outside attended the wedding and also that the venue was shifted to a green zone, to adhere to the lockdown norms. This incident is noted to have taken place on April 17, 2020. In court, the Petitioner Advocate Ramesh argued that till date no legal action has been taken against politicians for violating COVID-19 safety norms.

Secondly, the Court was told that the ceremony conducted on June 27 to commemorate the erection of the 108-foot tall statue of Kempegowda, did not follow the necessary social distancing norms either. The ceremony in question is pooja and commemoration of the construction of the aforementioned statue, in front of the international airport in Bangalore.

Third, being the safety violations that took place during the cycle protest rally in Bangalore on June 29. The rally took place to protest the spike in petrol prices. There have been allegations of the rally violating gathering orders and non-compliance to wearing marks. It has been noted that a day after the aforementioned rally, Karnataka reported more than 1000 cases in a single day. Bengaluru alone saw more than 700 cases on Sunday. The party claimed to have obtained permission to gather 200 people while maintaining adequate social distancing and precautionary measures.

Another important observation made before the Court by Advocate Ramesh was that there were several inconsistencies in the written submissions filed by the State Government. This shows bias towards publicly and politically influential persons.

Legal Provisions Involved

The afore-stated examples by the Petitioner call for different guidelines and legal provisions. When India first went into lockdown for 21 days, the citizens were strictly forbidden to conduct any public gathering, except funerals with a capacity of twenty people, until the relaxation and release of further guidelines on April 20^th, 2020.

While, from June 1^st 2020, India went in “Unlock 1.0”. Ministry of Home Affairs issues guidelines to be followed till June 30, 2020. The Government allowed for gatherings limited to fifty people. These guidelines allowed for religious places in “non-containment” zones to open, but with maintaining a distance of a minimum of six feet between the worshippers.

Both of the aforementioned guidelines were issues under the Disaster Management Act, 2005. Non-compliance of these guidelines could call for legal action against the individual under Section 51 to 60 of the Disaster Management Act, 2005. These Sections state in detail, offences and penalties for non-compliance with the directions laid by the State or Central Government under the said Act. These Sections impose a punishment ranging from one to two years of imprisonment or a fine or both.

Along with this Section 188 Indian Penal Code, which deals with disobedience to follow orders promulgated by public servants, will also be attracted for non-compliance of these orders. This section imposes a punishment of either a month of imprisonment, fine of Rs.200 or both.

The Government of Karnataka also issued precautionary measures of its own, under the Epidemic Diseases Act, 1897. Sections 2 and 2-A of the Epidemic Diseases Act places powers among the State Governments to take certain actions when they are satisfied that the State is visited or threatened with an outbreak of any dangerous epidemic disease.

Thus, came into the picture the Karnataka Epidemic Disease Ordinance, 2020. Sections 4, 15 and 17 of this Ordinance empowered the State Government to issue these guidelines. The measures imposed strict maintenance of social distancing of one metre along with wearing masks in “Public places”. Non-compliance of these said orders will be met with a fine of Rs.200 for violation in Municipal Corporation areas and Rs.100 in others. 

The Court was also made to look into Section 283 of the Indian Penal Code which dealt with a penalty for obstructing public ways or lines of navigation.

Critical Analysis

The Court opined that the State must enforce the adequate provisions in place irrespective of the influence of the individual in question. The Court mainly focused on non-violation of the guidelines issued under the Disaster Management Act, 2005.

Another observation was made with regard to violation of the guidelines during the protest rally on June 29 2020. Instead of filing for action under the Disaster Management Act, the violators were only convicted under Section 283 of the Indian Penal Code. This said Section does not deal with a violation of COVID-19 guidelines but only deals with obstruction of public navigation. Only a fine of Rs. 200 was imposed on the violators.

The Court also directed the State to issue a summary of all the action being taken against the violators of the guidelines issued under the Disaster Management Act. These actions must be under Section 51 to 60 of the Disaster Management Act or Section 188 of the Indian Penal Code.

Conclusion

This judgement shows the reliability of India’s judiciary. It highlights the morals our judiciary stands on, that is, “Justice is blind”. This judgement also shows how serious India is about its fight against the novel coronavirus.

Author: Vidhi Basrani from O.P. Jindal Global University.

Editor: Astha Garg, Junior Editor, Lexlife India.

Advertisement

Analysis: Ban on Online Classes in Karnataka

Reading time: 8-10 minutes.

The outbreak of coronavirus has affected the functioning of all sorts of organizations and institutions in India, with many states under lockdown to prevent the spread of the virus. Amidst the pandemic, the Indian education system has undergone a paradigm shift. Schools and colleges stay temporarily closed, and there is no certainty when they will reopen. The education sector has been significantly disrupted, with the structure of schooling and learning to be affected at first by these closures.

Some of the private schools on the other hand, were able to adopt online teaching methods, while most Government schools remained completely shut down for not having access to e-learning tools. The Karnataka High Court held that the Government orders banning online classes violate the Fundamental Right to Life and Education protected under Article 21 and 21A of the Indian Constitution.

Facts of the issue

The State Government passed Orders on June 15 and June 27 for banning the conduct of online classes from pre-primary to class 10 categories of students. Petitions were filed against the State Government’s order, where it was submitted before the Court, that a complete ban on the conduct of online classes would violate the Right to Education under Article 21A of the Indian Constitution. The Bench had been informed by the Government, that an Expert Committee had been set up, to suggest scientific methods of offering online education, based on which the Government took its decision to pass the aforesaid Orders, which were the subject matter of challenge in these Petitions. The Court was also informed by the Government that interim arrangements had been made to allow online classes to be conducted by the schools, for primary students up to the level of class five. This order had come after petitions were filed before the Court on a complete ban on online classes. The Division Bench comprising of Chief Justice Abhay Srinivas Oka and Justice Nataraj Rangaswamy issued an interim direction staying the government orders banning online classes.

Legal provisions involved

In the present scenario, e-learning is the only possible way to impart education to students, as schools continue to remain shut down. The Bench observed that the orders issued by the State Government were not issued in exercise of any statutory power. With the ratification of the law, reasonable restrictions could have been imposed on the exercise of fundamental rights, but the Karnataka Education Act, 1983, cannot be the law that permits the State Government to issue such orders. However, the Court pointed out that school authorities have no right to make online education compulsory for students or charge any extra fee for that matter. As per the petition filed before the Court, the orders passed by the Government under Article 162 of the Indian Constitution cannot violate the fundamental rights under Article 21 and 21A. Article 162 extends the Executive Power of a State to make laws which shall be subjected to, and limited by, the Executive Power as expressly conferred by the Indian Constitution or by any law made by Parliament. Article 21A provides for ‘free and compulsory’ education to all children in the age group of six to fourteen years as a fundamental right. Free and compulsory education means that no child, shall be liable to pay any kind of fees or charges while completing elementary education. Compulsory education lays down an obligation on the Government and local authorities to ensure admission, attendance, and completion of education by all children in the 6 to 14 year age group. Further, it was clarified that those who do not opt for online education should not be deprived of normal education when schools resume the conduct of physical classes. The Court added that the government would have to create possibilities and provide infrastructure to give education to students of the Government schools. 

Critical Analysis

The orders passed by the State Government had no ‘rational basis’ to ban the conduct of online education. The fact that the State is unable to extend e-learning tools to a certain category of schools, is not a ground to hold back other schools, who could adapt to online education from extending online education services. On June 27, the State Government modified the order, thereby allowing online classes for limited hours to students from pre-primary to class five provided they follow the guidelines laid down by the authorities. The State re-affirmed that the ban was only an interim measure until the government explored methods to ensure that no student shall be deprived of education on account of a lack of access to the internet. However, students between 0-6 years are a delicate subject that needs to be dealt with not only from the point of view of fundamental or educational rights but also keeping in mind child psychology. If eight students out of ten are taking online classes and two are not, then they will be left out. Elementary education is not only about schooling, but equally about parenting. How children are going to react to online classes is a matter of concern for educational institutions. The teachings of elementary education will lay the foundation of the personality of children.

Conclusion

As schools are shut down and uncertainty lies in the education sector as to when will the physical classes will commence, the only option one could resort to, is to adapt to e-learning tools. The pandemic has pushed schooling on to online platforms, and educational institutions across the board are compelled to utilize the available technological tools to help create an environment for learning for students in all sectors. The State should be made responsible for making arrangements to provide tools and equipment necessary for effective online education. The post-coronavirus future might consist of distant learning, meaning, there can be a shift in the entire education system, thereby not disrupting the process of learning among students at large. Students, parents, and educators will have to prepare themselves to bring the best out of online education, and in the process start adapting to a new approach; powerful learning experiences that will provide good quality education.

Perhaps, online learning will be here for a long time as the online mode has suddenly become the default mode of education, during this pandemic crisis. The pandemic is set to change the world sooner than we know, therefore preparation has to be done on an individual level and State level, to not get affected by its vulnerabilities, while maximizing human potential and resourcefulness at the same time. 

Author: Yeesha Sharma from Gujarat National Law University.

Editor: Astha Garg, Junior Editor, Lexlife India