• Tue. Nov 29th, 2022

Supreme Court Asks Gujarat Government If Commission’s Report Was Tabled In Assembly

ByChad J. Johnson

Oct 31, 2022

During the hearing of the suo moto case regarding the incident of Rajkot, Gujarat on 26.11.2020 leading to the death of Covid patients in Covid hospital on Monday the Supreme Court, curious to know what is Gujarat state’s plan of action, asked the state government to file an affidavit providing an updated position on the plans.

“The State of Gujarat will file an affidavit on the updated position of the plan.”

A bench comprising Judges DY Chandrachud and Hima Kohli was informed that the Commission of Inquiry headed by Judge DA Mehta, set up by the Government of Gujarat to determine whether the said incident at Shrey Hospital was the result of negligence or breach of duty of from an authority, has delivered its report. It was also filed in court under seal. Considering the fact that the Commission was appointed under the Commission of Inquiry Act and that its report is to be presented to the Legislative Assembly, the House asked if the state government had done the same.

“Has the report been tabled in the Assembly? The Commission was constituted under the Public Inquiry Commissions Act. You must table the report in the Assembly.”

As the Gujarat State Attorney was unable to join the proceedings via video conference due to technical issues, the petition could not receive an adequate response. Therefore, the Chamber ordered the Gujarat State Council to seek instructions if the report of the committee was tabled in the Legislative Assembly. And if not, when should the state government do it?

Initially, lead counsel, Mr. Dushyant Dave, appearing on behalf of the victims, submitted –

What will they get, wretch, 5 lakhs? Is it the loss of life? No security measures available in these hospitals. Hospitals are located in residential areas. These are serious offences, culpable homicide not constituting murder is clearly drawn.”

He added –

“There is no doubt that we need hospitals. But there should be a demarcation between residential, commercial and industrial areas.”

Counsel for an intervenor informed the Chamber that on October 17, 2022, the State of Gujarat drafted an ordinance to regularize unauthorized constructions.

Disappointed with the way permitted constructions are to be legitimized in the state of Gujarat as per the ordinance, Mr Dave remarked –

“How do you regularize the unauthorized constructions? It is a fraud against the constitution. These illegal constructions are a blessing of the municipal and police authorities, who have collected large sums of money, no action against them, the citizens have no paid the price, and now it is to be regularized.”

Justice Chandrachud said that in a suo moto proceeding, the Supreme Court might not be able to address the legitimacy of the order. He asked the lead counsel to provide a short note with the key issues, so that the Court can determine the parameters within which his intervention is required.

Agreeing to do so, from the outset, Mr Dave highlighted two key issues that would require consideration by the Apex Court –

  1. unattractive constructions and their implication; and
  2. compensation

Background

On the last occasion, the Apex Court noted that on July 8, the Gujarat government issued a notification ordering that no enforcement action be taken against buildings without BU clearance for three months from July 31. December 2021, which is the latest applicability date of the Gujarat Epidemic Diseases COVID-19 Regulation, 2020. While confronting the State of Gujarat over its decision to issue a notification extending the time for hospitals to rectify compliances, the Supreme Court had on July 19 decided to examine whether the notification violated its decree of December 18, 2020 relating to the maintenance and auditing of fire safety measures in hospitals.

Reportedly, the Gujarat government issued a second order on July 23, clarifying that the July 8 order was only for compliance with Gujarat Town Planning and Urban Development Act and not Gujarat Fire Prevention and Life Safety Measures Actfurther specifying that for any premises not complying with the latter, the competent authorities”must continue to take all measures, including coercive measures…

The Court then observed –

Such notification will directly conflict. And the notification is under Section 122 of the Community Planning Act. How can the government say that by issuing such a notice, a legislative provision will not apply at all? Circulars S.122 may be issued pursuant to the Community Planning Act and not to suspend the provisions of the Community Planning Act. I don’t know who advises the government

Said Section 122 stipulates that any competent authority under the Town Planning Act shall carry out such directives or instructions as may be issued from time to time by the State Government for the efficient administration of the law.

Earlier, the House had also requested the state to produce a copy of the report of the commission of inquiry headed by Judge Mehta, as well as the actions taken by the state regarding the recommendations contained in the report. SG Tushar Mehta told the judiciary that the Commission’s report was filed under seal. However, the bench had not received it.

December 18, 2020 three specific directions have been issued by the Court concerning the maintenance and audit of fire safety measures in hospitals:

a. All States/UTs have been directed to appoint a Nodal Officer for each covid hospital who will be responsible for ensuring compliance with all fire safety measures.

b. In each district, the state government was to set up a committee to carry out a fire audit at least once a month and inform the hospital management of the shortcoming and report back to the government to take follow-up action.

vs. The Covid hospital which had not obtained an NOC from the fire department was immediately required to apply for an NOC. In the event that the Covid hospital is found not to have an NOC or not to have obtained a renewal; appropriate measures should be taken by the State

The Chamber observed on July 19 that,

During the hearing, it emerged that on July 8, 2021, a notification was issued by the state government, whereby an extended deadline was issued to rectify the conformities for a period of three months from the latest date of the applicability of the Gujarat Epidemic Diseases Regulations 2020. The Court was advised that the final date being March 31, 2022, the extended three-month period would begin thereafter. The question of whether the notice was issued in violation of the instructions issued by the Court would merit consideration. Before considering the matter further, we are of the opinion that this aspect should be explained on affidavit by the State of Gujarat“.

The State of Gujarat was also required to file with the Court a comprehensive statement indicating (i) the audits that were carried out pursuant to the Order of December 18, 2020; and (ii) the outcome of audits particularly with respect to hospitals found to be non-compliant with safety and other standards under the Development Control Regulations.

[Case Title: In re proper treatment of covid 19 patients & dignified handling of dead bodies in the hospitals etc SMW(C) No. 7/2020 PIL]