Delhi HC order ‘Mask compulsory even if traveling alone in car’, shows need for judicial and legal reforms

Delhi High Court has held that wearing of masks is compulsory even if a person is driving alone in a car, in the context of the COVID-19 pandemic. The vehicle even if occupied by one person would be a ‘public place’, a single judge bench of Justice Prathiba M Singh held, as per legal site Bar & Bench.

The judgement was passed in a batch of petitions challenging the imposition of fines on those driving alone in their cars while not wearing a mask. All these petitions were dismissed as without merit today, with the judge commenting:

“A mask is like a suraksha kavach for preventing the spread of the coronavirus. It protects the person wearing it as also the person who is exposed…wearing of masks has been one measure that has saved millions of lives…wearing of masks is also encouraged within home if there are elderly persons. Vehicle moving across public places may pose risk of exposure . Thus, a vehicle even if constituted by one person would constitute a public place.. wearing of mask would be compulsory.”

Incidentally, the petitioners were lawyers who had claimed the imposition of such fine was unjust and illegal as travelling alone could not be said to be a “public place”.

The Bar & Bench report adds –

“While the Government of India and the State governments were working in collaboration to tackle COVID-19 pandemic, the same did not include any direction from it on mandatory wearing of masks when a person is alone in a vehicle, the Central government stated.

The Delhi government, on the other hand, asserted that a personal vehicle was not a private zone and any person in it must wear a mask compulsorily.

Relying on a Supreme Court judgment on the issue, the Delhi Government submitted that when a private vehicle passes through a public road, the public has the opportunity to “approach the private vehicle” and have access to it.”

The SC judgement which the HC judge relied on was delivered in 2019. As per this report from Sept 2020 –

“The case before the Supreme Court involved an interpretation of the Bihar Excise Act 1915. Through an amendment in 2016, a provision was included in the Act penalising “consumption of liquor in public places”.

The petitioners before the court were travelling to Bihar from Jharkhand in 2016 when their car was checked by the police at the border in Bihar’s Nawada district. While no liquor was found in the car, the petitioners were found to have consumed alcohol. They had approached the Supreme Court demanding that the charges against them under the Act be quashed.

Among other things, they had submitted that their private car cannot be said to be a public place. The Act defines a “public place” as “any place to which public have access, whether as a matter of right or not and includes all places visited by general public and also includes any open space”. Interpreting this definition, the court held that a private vehicle would be included in the definition of a “public place”.”

Such rulings bring to light deep-rooted flaws in Bharat’s legal and judicial systems:

1.) Legal reform: Various overlapping Acts, competing bureaucratic guidelines and jurisdictional conflicts are one part of the problem. So to combat the pandemic in Delhi, we have Disaster Management Act 2005, Epidemic Diseases Act 1897, Delhi Epidemic Diseases (Management of Covid-19) Regulations 2020 (derived from the Epidemic Diseases Act) and guidelines issued by Delhi Disaster Management Authority (DDMA) and other civic authorities.

Such legal tangles are not uncommon in many post-colonial countries, but we urgently need to do a full analysis and rationalization of this hodge-podge of laws, some of which are colonial era relics. Despite the Modi government taking some steps in this direction, much more needs to be done and a more dynamic Union Law Ministry is the need of the hour.

2.) Judicial reform: This is arguably the most-needed reform right now in Bharat. Judiciary must be made accountable to the people, which means making it accountable to the people’s representatives. There have been just too many arbitrary judgements coming from this institution, which makes the task of governance even more difficult. Orders are seemingly passed based on whims and fancies of judges, at times influenced by media reports they see in select left-liberal outlets.

In the present case, when the Union Health Ministry guidelines clearly say mask is not mandatory for person travelling alone in private car, the judiciary should trust the expertise of the concerned ministry and overrule the Delhi Government’s bizarre assertion that a personal vehicle was not a private zone. In general, there is just too much scope for judicial interpretation and judicial activism in the current set-up. This must end, and judiciary’s role must be clearly demarcated as an interpreter of law, and not creator of new laws.

SC Justice Chandrachud’s troubling remark that “Judging is self-expression of what you consider to be a just society” reveals the mindset which has come to dominate in the judiciary after 3 decades of the opaque collegium system. Bharat’s judiciary has become an alternate power center and has an exalted self-image as ‘last hope of the Republic’, which can never be good for any country, and is contrary to the idea of ‘separation of powers’ between legislature, executive and judiciary.

Recent comments from the UP and Gujarat High Courts around Covid management are yet more examples of judicial overreach based on PILs and suo motu (on its own accord) acts of the judiciary. They reflect that “Judiciary has inner desire to work as executives. The comments of the both the high court is reflection of that desire. Judiciary wants to exercise it’s power across the domain without any accountability“, as expressed by a tweeter.

Bharat needs to move away from the British common law system where a body of unwritten laws based on legal precedents gets established by the courts. We must seriously evaluate moving to the civil law system followed in East Asia, continental Europe and many other parts of the world. The NJAC (National Judicial Appointments Commission) law passed by both houses of Parliament, which would have ended the collegium system, was shot down and ruled ‘Unconstitutional’ by the Supreme Court in 2015. Many serving and retired SC judges have also spoken against the flaws of the collegium system and it is high-time that NJAC became a reality.

Our present system of democracy has many structural flaws, and elected representatives also do not always have the best interests of the nation at heart, as the MVA coalition mess in Maharashtra shows. But to allow the judiciary, an unaccountable body, to exercise unchecked powers based on the ineptitude and avarice of a section of politicians is like throwing water to put out a fire caused by electrical short-circuit.

Collecting fines from private citizens on such flimsy grounds is absolutely ridiculous when one sees how governments and courts all over the country have turned a blind eye to the non-stop ‘farmers’ protests and massive election rallies, where Covid norms have been blown to bits. Apex court even downplayed the violence on Republic Day, calling it a ‘visit to Delhi by farmers’! The same state apparatus also becomes mute when frontline workers are attacked and all Covid protocols broken by Muslim mobs, but come Hindu festival time, strict bans are announced and harsh orders issued for devotees to show RT-PCR test reports!

The mindless application of a blunt instrument like lockdown, which has pushed millions into economic ruin, is another example of how our large parts of our state machinery is disconnected from the pulse of ordinary citizens. Why were contact tracing, testing, isolation/quarantine and mass awareness campaigns ignored for the last 3-4 months, especially in states which had already suffered the most in the first wave of the pandemic? Why weren’t the ‘farmer’ protests disbanded with the same ease with which Holi and Diwali celebrations were curtailed? Why weren’t elections postponed by a few months? Could domestic vaccination have been prioritized and better planned to first target high-risk districts? The answers to some of these questions will be harsh as they show up the hollowness of our democracy and the perverse incentives it often creates. Constitutional reforms are needed to fix some of these structural issues, but the priority at this point has to be judicial reforms and legal clean-up/simplification.

The double standards of our secular state are becoming clearer to ordinary citizens with each passing day, and this does not bode well for the legitimacy and authority of the state.


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