The Madras High Court on Tuesday reserved its verdict on a public interest litigation petition that had challenged the State government's move declaring non wearing of masks, failure to maintain physical distance and violating other COVID-19 related precautions as compoundable offences which attract fines ranging between ₹200 to ₹5,000.
First Division Bench of Chief Justice Amreshwar Pratap Sahi and Justice Senthilkumar Ramamoorthy deferred their verdict to November 27 after hearing elaborate arguments advanced by the petitioner R. Muthukrishnan, a 77-year-old advocate from Ramapuram here, and State Government Pleader V. Jayaprakash Narayanan.
The petitioner claimed that the move to impose fine, without a solid statutory backing, for issues such as not wearing masks and failure to follow standard operating procedures amounted to violation of rights guaranteed to citizens under Articles 14 (right to equality) and 21 (right to life) of the Constitution.
Pointing out that the government itself had conceded to have collected several crores of rupees in fine, the petitioner said such a measure could not be resorted to unless there were clear cut provisions under the Tamil Nadu Public Health Act of 1939 declaring non adherence to physical distance norms and so on as offences that could be compounded.
He said a government gazette notification issued on September 4 had declared them to be compoundable offences by relying upon Section 76(2) of the 1939 though that provision only empowers government officials to issue SOPs and ensure wearing of masks and so on to control spread of notified diseases. The Section nowhere declares non adherence by individuals as an offence, the petitioner pointed out.
He also stated that the gazette notification had been issued by the Health Secretary and not the Governor. On the other hand, Mr. Narayanan claimed that there was no need to obtain prior approval of the Governor before issuing the gazette notification which had declared certain COVID-19 preventive measures as compoundable offences.
The SGP asserted that the notification had been issued in accordance with the rules which had been framed by the Governor, exercising powers under Article 166(3) of the Constitution, for allocation of business to various departments.
Article 166(1) states that all executive actions of State Governments should be expressed to be taken in the name of the Governor. Further, Article 166(2) makes it clear that Government orders and other instruments made and executed in the name of the Governor should be authenticated in such manner as may be specified in rules to be made by the Governor and the validity of an order or instrument so authenticated should not be called in question on the ground that it was not an order or instrument made or executed by the Governor, he pointed out.
As far as the present gazette notification was concerned, it begins with the words, “The Governor of Tamil Nadu hereby makes the following rule,” the SGP said.
