Background

The Petitioner has filed a writ on 8 Jan 2022 seeking investigation by premiere investigation agency of India – The Central Bureau of Investigation (CBI) into the decision of Maharashtra Government & Municipal bodies to test asymptomatic and healthy people and thereby causing misappropriation of public funds on massive scale.

The Petitioner is further seeking direction by the Officer of Maharashtra State government to not carry out contact tracing of asymptomatic contacts of a symptomatic case and further direction to the involved authorities to only test symptomatic people. For those with Covid symptoms, an RAT (Rapid Antigen Test) or RT-PCR test should be conducted, but the PCR cycle threshold should be reduced to 24 and no retest with a PCR should be done if someone is negative with the RAT test.

The Petitioner also seeks direction to all private bodies including societies, companies, schools, universities, banks etc. & all government officials/bodies to not mandatorily demand a negative test report from asymptomatic healthy people.    

Significance

this Writ Petition challenges the legality of pcr test without which the pandemic could end

Plaintiff’s Argument

• Despite suggestions by experts and directions by the Central Government authorities, the State of Maharashtra is unnecessarily doing Covid-19 testing of asymptomatic & healthy people.
• The orders passed by the State authorities are arbitrary, unlawful and based on bad faith and ulterior motives.
• The policies of the State Authority are resulting in profits to private companies who are benefiting from the testing. This in itself represents an offense of misappropriation of public money and property punishable under Sec. 409, 52, 120(B), 34, 109 etc. of IPC.
• The mandates by the state are unconstitutional, violating fundamental human rights of the citizen and therefore liable be quashed.

The hearing is yet to commence

Relevant Prior Judgements/ Cases

• Honourable Supreme court in Noida Entrepreneurs Assn. vs. Nodia (2011) 6 SCC 508 has ruled that in such cases the investigation through CBI be ordered.
• The corruption & frauds of state authorities is already exposed by Shri. Kirit Somaiya of BJP.

Decision

The Bombay High Court on Tuesday said the Maharashtra government’s orders of 2021 permitting only people fully vaccinated against COVID-19 to travel in local trains were “illegal” and brazenly affected the fundamental rights of citizens. A division bench of Chief Justice Dipankar Datta and Justice M S Karnik said the three orders signed by the government’s then chief secretary Sitaram Kunte were in clear diversion from the prescribed procedure under the Disaster Management Rules. [4]

“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 HC said. [4]

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. [4]

“In 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. “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,” Anturkar said. [4]

The bench then pointed out that the number of people who tested positive for coronavirus in Mumbai on Monday (Feb 21, 2022) 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. [4]

On Monday, Mumbai reported 96 new COVID-19 cases, the lowest single-day rise after April 17, 2020, as per the city civic body. [4]

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. [4]

“The chairperson has the powers 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. [4]

Aftermath

• Within two days of filing of this Petition, the Mumbai Municipal Corporation (local municipality) stopped testing at railway stations, beaches, markets and other crowded places. [1]
• Also, ICMR (Indian Council of Medical Research) issued directions that the contacts of coronavirus patients are not required to undertake a Covid test. The close contacts will only require testing if they are identified as high-risk individuals based on their age or underlying health conditions.[2][3]

Further Research

Court Documents:

• Read the Court Ruling

In the news:

• …More information is needed…

Media

Keyword

asymptomatic, Bombay, Bombay court, constitution, Cycle Threshold, India, mandates, Mass Testing, pcr, Rapid Antigen Test, Writ petition