Maharashtra govt orders on allowing only fully vaccinated people on locals illegal: Bombay High Court

Passengers wait to board a local train at Dadar station. File pic

The Bombay High Court on Tuesday said the state government's orders of 2021 permitting only those fully vaccinated to travel on local trains were "illegal" and brazenly affected the fundamental rights of citizens. Reacting to it, Senior Citizen Passenger Committee member Mansoor Umer Darvesh told mid-day that action should be taken against the former chief secretary for misusing his power and harassing the general public.

The division bench of Chief Justice Dipankar Datta and Justice M S Karnik said the three orders signed by the then chief secretary Sitaram Kunte were in clear diversion from the prescribed procedure under the Disaster Management Rules. The HC said, "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 state executive committee will soon consider lifting the restriction that keeps people without or with just one dose of vaccine from travelling by local trains. File pic

Darvesh, a 62-year-old from Jogeshwari, had sparked a debate in August 2021 by stating in a letter to the chief minister's office and the railway bosses that vaccination was a choice while public transport was right. mid-day had reported on this.

"You cannot deny public transport to those who are not vaccinated. Action should be taken against former Chief Secretary Sitaram Kunte for misusing his power and harassing the common man. The facilities given to an officer after retirement should not be given to him, in a bid to deter other officers," an elated Darvesh told mid-day.

Yohan Tengra, one of the petitioners who had claimed that the double-dose mandate was discriminatory, said the state government has been asked to withdraw their illegal orders and it was a great victory for all the activists at the high court.

Shailesh Jaiswal, a resident of Dadar, said, "Due to some medical reasons, my uncle was unable to take the vaccine, and he was not allowed to take the cheapest mode of public transport in the city - the local train - due to this rule."

"There can't be similar restrictions in future. Courts must declare any such restriction as unconstitutional. The unvaxxed have gone through enough misery," said Ashish M, another citizen.

On Tuesday, the government's counsel, Anil Anturkar, informed the court that the three orders in question - issued on July 15, August 10 and August 11, 2021 - stand withdrawn. "In the spirit of the observations made by the high court, the three orders are withdrawn. The state executive committee would be holding a meeting on February 25 following which fresh directives would be issued," Anturkar said.

He added, "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."

The bench then pointed out that the number of people who tested positive 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 HC said and posted the matter for further hearing on February 28.

The HC bench noted that Kunte's 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 power 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.

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, as guaranteed by Article 19 (1) (d) of the Constitution.

Nilesh Ojha, counsel for one of the petitioners, had previously argued that the state failed to apply its mind while coming up with the SOPs and that it discriminated between the vaccinated and unvaccinated people, though neither the Centre nor the Maharashtra government had made vaccination mandatory.

(With input from agencies)

Feb 25
Day when the state executive committee is set to meet

Feb 28
Day when the next hearing is scheduled