HOSPITALS ASSOCIATION, NAGPUR Vs. GOVERNMENT OF MAHARASHTRA

JUDGEMENT

(1.) The entire world is under the shadow of unprecedented atmosphere and situation, which has arisen due to Coronavirus disease (COVID-19) pandemic outbreak. The disease has spread its tentacles all over the world, which is fighting a war against it. The World Health Organization (WHO) has declared COVID-19 as pandemic on 11-3-2020. Three major challenges were pitted and those were - (i) to prevent the spread-over of the disease, (ii) to detect the persons infected with the disease and its source, i.e. contact tracing, and (iii) to treat the patients of the disease. The WHO has issued interim guidance on 19-3-2020, laying down the laboratory test guiding principles for the patients, who meet the suspected case definition, and the protocol to meet the aforesaid three challenges. On similar lines, the Indian Council for Medical Research (ICMR) in the Department of Health Research, Government of India, has issued the guidelines on 4-4-2020, 9-4-2020, 17-4-2020, 24-4-2020 and 18-5-2020. The guidelines were also issued by the Government of India, Ministry of Health and Family Welfare, on 15-4-2020.

(2.) The only organ of the Constitution, which shouldered the responsibility to fight this war against COVID-19, is the executive, which was required to formulate the policy for the better prevention of the spread of the dangerous epidemic disease of COVID-19. The executives at the Centre and the States invoked the provisions of the Epidemic Diseases Act, 1897 (the ED Act). Section 2 therein empowers the State Government to take special measures and prescribe regulations as to dangerous diseases. The twin tests need to be satisfied to attract this provision - (i) that the State or any part thereof is visited by, or threatened with, an outbreak of any dangerous disease, and (ii) that the ordinary provisions of the law for the time being in force are insufficient for the purpose. It further empowers the State Government to take or require or empower any person to take any such measures and to prescribe temporary regulations to be observed by the public or any person or class of persons as it deems necessary to prevent the outbreak of such disease or to spread thereof. It further empowers the State Government to determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.

(3.) In exercise of the power conferred by sub-section (1) of Section 2 of the ED Act, the Maharashtra COVID-19 Regulations, 2020 ('COVID Regulations', for short), framed on 14-3-2020, declaring the 'Coronavirus Disease' as dangerous epidemic disease. Regulation 3 therein empowers the appointment of all Divisional Commissioners of Revenue Divisions and all Collectors and Municipal Commissioners as 'Empowered Officer' under sub-section (1) of Section 2 of the ED Act to take such measures as are necessary to prevent the outbreak of COVID-19 or the spread thereof within their respective jurisdictions. The respondent No.2- the Municipal Commissioner, Nagpur, is, therefore, an Empowered Officer for Nagpur. Regulation 4 therein states that all hospitals (Government and Private) should have separate corners for screening of suspected cases of COVID-19. Clause 10 under the said Regulation deals with the implementation of the containment measures stated therein, but not limited to these, in order to prevent spread of the disease.