Kerala High Court
Justice Brigade (Reg. No. 154/Iv/2019) vs Union Of India Represented By The ... on 18 March, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 18TH DAY OF MARCH 2020 / 28TH PHALGUNA, 1941
WP(C).No.8260 OF 2020(S)
PETITIONER/S:
JUSTICE BRIGADE (REG. NO. 154/IV/2019)
OPPOSITE CENTRAL REVENUE BUILDING, I.S.PRESS ROAD,
KOCHI - 18, REPRESENTED BY ITS MANAGING TRUSTEE,
DR.K.P.PRADEEP, S/O.KRISHNAN NAIR, C/C55/1636,
B.VRINDAVANAM, THOTTUNGATHARA ROAD, KADAVANTHRA P.O.,
ERNAKULAM DISTRICT, PIN - 686 020.
BY ADVS.
SMT.DAISY A.PHILIPOSE
SRI.JAI GEORGE
SMT.P.ANITHA
RESPONDENTS:
1 UNION OF INDIA REPRESENTED BY THE MINISTRY OF HEALTH
AND FAMILY WELFARE, NIRMAN BHAVAN, NEAR UDYOG BHAVAN
METRO STATION, AZAD ROAD, NEW DELHI-110 011.
2 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM -695 001.
3 THE PRINCIPAL SECRETARY TO GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT,
THIRUVANANTHAPURAM -695 001.
4 THE DRUGS CONTROLLER,
ATHANI JUNCTION, THIRUVANANTHAPURAM -695 035.
5 THE DEPUTY CONTROLLER (CENTRAL REGION),
LEGAL METROLOGY LEGAL METROLOGY BHAVAN, KAKKANAD,
ERNAKULAM - 682 030.
6 THE DISTRICT COLLECTOR,
CIVIL STATION, KAKKANAD P.O., ERNAKULAM - 682030.
W.P(C) No.8260/2020 2
7 INDIAN MEDICAL ASSOCIATION,
COCHIN BRANCH, IMA HOUSE, JAWAHARLAL NEHRU
INTERNATIONAL STADIUM ROAD, KOCHI - 682025,
REPRESENTED BY ITS SECRETARY.
R1 BY ADVS. SRI.P.VIJAYAKUMAR
SRI. SUVIN R. MENON
R7 BY ADV. SRI.SHYAM PADMAN
SRI.C.M.ANDREWS
SRI.P.T.MOHANKUMAR
SMT.BOBY M.SEKHAR
SMT.IRENE ABRAHAM
R2 TO R6 BY SRI.K.V.SOHAN, STATE ATTORNEY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C) No.8260/2020 3
JUDGMENT
Dated this the 18th day of March, 2020 S.Manikumar, CJ Instant public interest writ petition is filed for the following reliefs:
1. Issue a writ of mandamus directing State of Kerala, represented by the Chief Secretary, Secretariat, Thiruvananthapuram (respondent No.2) to take immediate action to close down all places where public gather, including shopping malls, schools, theaters, universities and tourist places in the State temporarily.
2. Issue a writ of mandamus directing respondent Nos.2 to 6 to take immediate measures to control the prices and ensure sufficient supply of "hand sanitizers and the face masks", in the State.
2. Petitioner is aggrieved by the non-availability of hand sanitizers and face masks in the market and its profiteering, amid increased demand for the products, in the wake of Corona Virus disease. As per the information released by Union of India, represented by Ministry of Health and Family Welfare, New Delhi (respondent No.1), through Public Information Bureau, all States have been directed for health sector preparedness and on the same day, point of entry surveillance was initiated. World Health Organisation (WHO) has declared COVID-19 as a public health emergency on 30.01.2020. With over 118,000 corona virus cases sweeping across 146 countries of the world, WHO has declared it as a pandemic on 11.03.2020. Following the WHO's announcement, the Union Cabinet Secretary has W.P(C) No.8260/2020 4 directed all the States and Union Territories to invoke Section 2 of the Epidemic Diseases Act, 1897. Considering the gravity of the situation, Central Government have issued a notification as S.O.1087(E) dated 13.03.2020 (Exhibit-P2), adding masks and hand sanitizers, as essential commodities. Petitioner has contended that State of Karnataka, where six cases have been confirmed for COVID-19, have taken a decision to close down the shopping malls, schools, theaters, universities and tourist places.
3. Petitioner has further contended that in State of Kerala, as per the information published in Malayala Manorama Daily, on 16.03.2020, there are 24 persons affected with Corona Virus, 10914 persons under observation, samples of 2147 persons are being examined and 289 persons have been admitted in various hospitals. However, in Kerala, so far as the schools and universities are concerned, other than granting exemptions for the students till VII Standard, all examinations are still going on, malls and tourist places etc., are still functioning. It is further contended that as COVID-19 patients continue to surge, sanitizers and masks have started to disappear from medical stores and the medical shops have started to sell the same, at a higher price. Being aggrieved, instant writ petition is filed on the following grounds:
A. The petitioner is a registered voluntary organization of lawyers, for discharging the fundamental duties of citizens of India as envisaged under the Constitution of lndia, especially volunteering W.P(C) No.8260/2020 5 services at times of social needs. Now, the petitioner is aggrieved by the non availability of sanitizers and masks in the market and its profiteering, amid increased demand for the products, in the wake of Corona Virus disease. Article 51A(g) proclaims it to be fundamental duty of every citizen of India, to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. Thus, the petitioner has sufficient interest in taking up this social cause and it has the locus standi to file this writ petition in public interest.
B. As COVID-19 patients continue to surge in Kerala, sanitizers and masks have started to disappear from shelves with several stores and medical stores selling the coveted items at 2-3 times their price to panicky buyers. Several medical stores are not getting any fresh supplies of sanitizers and face masks. The World Health Organization (WHO) has already warned about shortage of personal protective equipment caused by rising demand, panic buying, hoarding and misuse. WHO has ordered the industry and Government to increase manufacturing by 40%. lt is reported in Mathrubhumi.com, which is an online daily, on 10/3/2020 that in a raid conducted by the Regional Drug Inspector, it was revealed that surgical masks which were usually sold for Rs.5/- are being sold for Rs.40/- or higher. The respondents are duty bound to control the prices and ensure sufficient supply of these essential products in a situation like this.
C. Section 3 of the Essential Commodities Act 1955, provides for the control, production, supply, distribution etc. of essential commodities as follows:
(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and W.P(C) No.8260/2020 6 availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.
(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made there under may provide:--
(a) for regulating by licenses, permits or otherwise the production or manufacture of any essential commodity;
(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food-crops generally or of specified food-crops, and for otherwise maintaining or increasing the cultivation of food-crops generally, or of specified food-crops;
(c) for controlling the price at which essential commodity may be bought or sold;
(d) for regulating by licenses, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity;
(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;
D. As per section 2A[1] of the Essential Commodities Act, 1955, "Essential Commodities" are specified in the Schedule. Drugs as defined in clause [b] [iv] of Section 3 of the Drugs and Cosmetics Act, 1940 is included in the schedule. As per clause [b] of Section 3 of the Drugs and Cosmetics Act,1940, such devices intended for internal or external use in the diagnosis, treatment, mitigation or prevention of diseases or disorder in human beings or animals, as W.P(C) No.8260/2020 7 may be prescribed from time to time by the Central Government by notification in the official gazette, after Consultation with the Board. As the sanitizers and the face masks are intended for external use in the diagnosis, treatment, mitigation and prevention of diseases in human beings, they have been declared as "Essential Commodity" as per Ext-P2 notification. Therefore, the respondents are duty bound to take all measures to ensure that the face masks and hand sanitizers should be provided at subsidized prices. E. The Epidemic Diseases Act,1897, confers special powers upon local authorities to implement measures necessary to control epidemics. Section 2 of the Act reads as follows:
"When at any time the State Government is satisfied that the State or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the State Government, if it thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose, may take, or require or empower any person to take, such measures and by public notice prescribe such temporary regulations to be observed by the public or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred, including compensation if any shall be defrayed.
Under Section 3 of the Epidemic Act, disobeying any regulation or order made under this Act shall be punishable under Section 188 of the Indian Penal Code. Therefore, the respondents have ample power to take such measures and by public notice prescribe such temporary regulations to be observed by the public or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease or the spread thereof.W.P(C) No.8260/2020 8
F. As per Section 30 of the Disaster Management Act, 2005, Powers and functions of District Authority is given as follows:-
1. The District Authority shall act as the district planning, coordinating and implementing body for disaster management and take all measures for the purposes of disaster management in the district in accordance with the guidelines laid down by the National Authority and the State Authority.
2. Without prejudice to the generality of the provisions of sub-
section (1), the District Authority may-
i. prepare a disaster management plan including district response plan for the district;
ii. coordinate and monitor the implementation of the National Policy, State Policy, National Plan, State Plan and District Plan;
iii. ensure that the areas in the district vulnerable to disasters are identified and measures for the prevention of disasters and the mitigation of its effects are undertaken by the departments of the Government at the district level as well as by the local authorities; iv. ensure that the guidelines for prevention of disasters, mitigation of its effects, preparedness and response measures as laid down by the National Authority and the State Authority are followed by all departments of the Government at the district level and the local authorities in the district;
v. give directions to different authorities at the district level and local authorities to take such other measures for the prevention or mitigation of disasters as may be necessary;
vi. lay down guidelines for prevention of disaster management plans by the department of the Government at the districts level and local authorities in the district;
vii. monitor the implementation of disaster management plans prepared by the Departments of the Government at the district level;
W.P(C) No.8260/2020 9viii. lay down guidelines to be followed by the Departments of the Government at the district level for purposes of integration of measures for prevention of disasters and mitigation in their development plans and projects and provide necessary technical assistant therefor; ix. monitor the implementation of measures referred to in clause (viii);
Therefore, 1st respondent, Union of India, is bound to implement Exhibit-P6 order in order to avoid another disaster in the area."
4. On this day, when the matter came up for further hearing, petitioner has filed I.A. No.1 of 2020 in W.P.(C) No.8260 of 2020 seeking for a direction to accept additional documents, as Exhibits-P7 to P14.
5. Exhibit-P7 and P8 are the guidelines published in the website maintained by Union of India, Ministry of Health and Family Welfare, respondent No.1, to prevent spreading of COVID-19 disease and Exhibits-P9 to P14 are the bills for purchase of face masks and hand sanitizers issued on 17.03.2020 by various medical stores in Kochi. We have perused the affidavit accompanied to this application and satisfied with the reasons assigned. I.A. No.1 of 2020 is allowed. Exhibits-P7 to P14 be taken as additional exhibits.
6. Inviting our attention to Section 3(2)(c) of the Essential Commodities Act, 1955, Mrs. Daisy A. Philipose, learned counsel for the petitioner, submitted that power is conferred on the Government to control the price of an essential commodity. Attention was also invited by the learned counsel to the provisions of the Epidemic Diseases Act, 1897 and submissions made that when the Essential Commodities such as masks, W.P(C) No.8260/2020 10 sanitizers etc., are sold by the medical shops, at exorbitant rates, taking advantage of the prevailing situation, in the State of Kerala, Government of Kerala should be directed to respond forthwith and take adequate measures for control of the price of such essential commodities, and to ensure that the same is easily available to the public.
7. On behalf of Indian Medical Association, respondent No.7, statement dated 18.03.2020 is filed, along with Annexure-R7(a), which is the recommendations of WHO for hand-rub formulations and Annexure-R7(b) fixed dose combinations, approved by DCG(I), for hand hygiene formulations. Said statement is extracted hereunder:
"It is no doubt that the State in particular and the country in general is passing through a very critical stage in battling the pandemic COVID19. The countries which had maximum number of casualties were not on account of any wanting in the expertise or personnel, but on account of the inability to handle the massive overload which resulted in a complete collapse of the health service sector. Taking a cue from Italy, Spain and Iran it can be seen that it was on account of massive overload which resulted in the avoidable catastrophe, had the initial precautionary measures to contain the spread of the virus been effectively implemented.
2. Hence during this crucial period of 'breaking the chain' it is imperative that all precautionary measures to contain the spread of the virus need be taken, and avoid the massive overload which would otherwise happen, that would result in denial of care and casualties. Denial of care on account of the overload may even result in riots and other forms of public anger which would further W.P(C) No.8260/2020 11 worsen the situation.
3. Even if we assume the lowest possible attack rate of 7%, the number of patients would still be a staggering 24 lakhs, which our systems cannot support. It is equally possible that in a thickly populated area like Kerala, the attack rate could be higher than 19%, it would be futile to speculate as it is a new virus of only four months history. With just 37,021 beds, (2013 data, Govt sector, MOHFW) Kerala's health-care system does not even have a fraction of the beds required to handle such an epidemic happening all at once. It may be noted that once the epidemic hits us at full force, there will be practically no care available to many of the critically ill. Death rate will then climb higher. All our hospitals will be full in no time. We need to set up extensive temporary facilities in stadiums, halls, schools and hotels, also remembering to obtain protective equipment and recruit staff to cope with the massive patient load in the coming weeks.
4. Our only hope is to slow down the spread of the virus, so that our hospitals can cope. This is called 'flattening the epidemic curve'. In the said circumstances the following measures are suggested :
• Provide more screening facilities - allowing private participation in screening/ testing.
• stop all public gatherings and enforce social distancing. • Strictly enforce hand hygiene--highlighting the importance of hand wash with soap and promoting use of sanitizers only as a second option.
• Ensure that the sanitizers available in the market strictly comply with the recommended standards and thus avoid the false sense of safety on using substandard sanitizers.
A. PROVIDE MORE SCREENING FACILITIES - ALLOWING PRIVATE PARTICIPATION IN SCREENING /TESTING.-W.P(C) No.8260/2020 12
The initial reported positive numbers in any country are invariably low. That is because the tests are done only on a few people. Experts say that thousands of people are already in the community by the time a few cases are detected by official testing. COVID19 is a fast-spreading virus unlike Nipah. Its R-0 or ability of me person to infect others is hid! at 2-4. That means, one person infects two, two will infect four, then 8 and so on. Hence there is need for availability of more existing health care system. Early social distancing is not a new solution. It is at least 100 years old, and proved successful during the 1918 flu pandemic, where a delay of just a few days killed 8 times more people in Philadelphia compared to St Louis in the US.
B. STOP ALL PUBLIC GATHERINGS AND ENFORCE SOCIAL DISTANCING.
The 7th respondent proposes "six feet, six persons" limit to make it easy for people to understand and to implement. Six feet being the distance between people, and six being the maximum number of people in a single social gathering. Other aspects of social distancing can be specified by local health authorities from time to time.
C. STRICTLY ENFORCE HAND HYGIENE -- HIGHLIGHTING THE IMPORTANCE OF HAND WASH WITH SOAP AND PROMOTING USE OF SANITIZERS ONLY AS A SECOND OPTION.
Washing your hands is a more effective protection against corona virus COVID-19 than hand sanitizer. If you can't access soap and water, sanitizer is the next best thing, according to a World Health Organisation adviser. It's tempting, especially now, to buy one of the many hand sanitizers whose label says it "kills 99.99% of illness causing germs." But that does not mean the product will protect you against the novel corona virus. The Centers for Disease Control and Prevention recommends rubbing on hand W.P(C) No.8260/2020 13 sanitizers with at least 60% alcohol when you aren't able to wash your hands. The New York Post suggests that, in situations where washing your hands is not possible, wipes and hand sanitizer can prove to be useful in eliminating dangerous microorganisms. Hence awareness regarding proper hand wash using soap has to be promoted and use of standard sanitizer only suggested as a second option.
D. ENSURE THAT THE SANITIZERS AVAILABLE IN THE MARKET STRICTLY COMPLY WITH THE RECOMMENDED STANDARDS AND THUS AVOID THE FALSE SENSE OF SAFETY ON USING SUBSTANDARD SANITIZERS.-
A. Taking advantage of the acute shortage of hand sanitizers amid the corona virus outbreak, manufacturers are supplying sanitizers of inferior quality at a higher price. Labelled 'kills 99% germs', these products are not approved by the Food and Drugs Authority (FDA) and are ineffective in providing safety against the new strain of the novel corona virus, COVID-19. As a precaution, citizens are purchasing hand sanitizers in bulk over the past two months, pushing up the demand by almost 400%, reports Hindustan Times. Sanitizers that don't contain the CDC's recommended minimum of 60% alcohol are flying off store shelves and listed by sellers on Amazon for outrageous prices. It is further reported that Hand sanitizers at inflated rates, with packaging similar to branded companies and most information mentioned on it false, in violation of FDA rules are being marketed. A hand wash comes under the purview of the Cosmetics Act, as per information gathered from FDA, but the sanitizer comes under the Drugs Act as it has ethanol-alcohol. A manufacturer needs licence from the FDA to procure ethanol-alcohol.
B. The American Centres for Disease Control and Prevention (CDC) recommends hand sanitizers with a minimum of 60 per cent W.P(C) No.8260/2020 14 alcohol content are the best choice. According to directives issued by the World Health Organization (WHO), it is essential to use hand sanitizers with alcohol concentration of more than 60%, as corona virus can get transmitted through human contact. Steps to enforce these guidelines have to be taken, to avoid the general public is cheated and exposed to unnecessary risks.
7. By acting now, we will be able to "flatten the curve" or slow the spread in the community, so that people would become sick over a longer period of time. Thus, the flow of patients to the hospitals will be more manageable. This is better than a large number of patients getting sick at the same time. Early introduction of such measures has already been successfully tried in Hong Kong and Singapore who had a chance to learn from China's mistakes. In contrast, Italy, Spain, US and Iran are suffering severely because of their early denial and the resulting delay in introducing these measures."
8. Per contra, Mr. K. V. Sohan, learned State Attorney, submitted that face masks and hand sanitizers have been included as essential commodities only recently, i.e. on 13.03.2020 but, even before that, based on the provisions of the Disaster Management Act, 2005, District Collectors of Kerala State have already issued instructions to the Assistant Drugs Controller, with a copy marked to other competent authorities, to take stringent action against those who indulge in creating artificial scarcity, in the sale of commodities, at higher prices. Placing reliance on the judgment of the Hon'ble Supreme Court in State of Andhara Pradesh and Another v. Potta Sanyasi Rao and Others reported in (1975) 2 SCC 480, learned State W.P(C) No.8260/2020 15 Attorney submitted that pursuant to the notification issued by the Central Government, declaring masks and sanitizers as essential commodities from 13.3.2020, Government of Kerala would issue necessary notifications/orders, as the case may be, fixing the Maximum Retail Price (MRP) of masks and sanitizers, in the State of Kerala. He further submitted that suitable regulations/notifications/orders, as the case may be, would be issued regulating sale of masks and hand sanitizers, as the case may be.
9. In addition to the above, Mr. Sohan, learned State Attorney also invited our attention to the statement filed on behalf of the Principal Secretary to the Government, Department of Health and Family Welfare, Secretariat, Thiruvananthapuram, (respondent No.3), which reads thus:
"1. In view of the evolving global scenario, COVID--19 disease has been declared as a pandemic by World Health Organization. In Kerala, more than 25 cases are reported and many persons are under surveillance. In order to prevent community spread of the disease causing widespread morbidity and mortality, Government has taken stringent actions from time to time. As per G.O.(Rt) No. 560/2020/H&FWD dated 11.03.2020[Annexure-R3(a)], Government have issued directions to public and various departments also decided to constitute COVID Cells in various Departments to ensure coordinated response.
2. Government have also issued S.R.O No.205/2020 dated 14.03.2020, thus declared COVID-19 as notified disease. As per G.O.(Ms) No.9/2020/DMD dated 17.03.2020, Government permitted to use up to 25% of the SDRF allocation for the year for W.P(C) No.8260/2020 16 'Measures for quarantine, sample collection and screening' and upto 10% of SDRF allocation for 'Procurement of essential equipment/ labs for response to COVID-19. True copy of G.O.(Ms) No.9/2020/DMD dated 17.03.2020 is produced herewith and marked as Annexure R3(b). Subsequently vide G.O. (Rt) No. 321/ 2020/DMD dated 13.03.2020, Rs.07.18 Crores released to Kerala Medical Services Corporation Limited, the central procurement agency for the State of Kerala for making the necessary procurement for all the health facilities so as to avoid the out of pocket expenditure for the beneficiaries.
3. Kerala Medical Services Corporation Ltd. (KMSCL), being the State Procurement agency of medicines and other supplies to various Government hospitals has taken all measures to ensure the availability of consumables including Personal Protection Equipment Kits, N95 Masks, double layer/ triple layer masks and hand sanitizers as well as other emergency items to the care centres throughout the State. Karunya Community Pharmacy Services, an initiative of KMSCL has 67 outlets across the State where the drugs and other supplies are given to public at subsidized price. Measures have already been taken to procure and stock the essential items including face masks and hand sanitizers and these items are issued to the public at subsidized rates. In order to curtail COVID-19 as per the instruction given by the Department of Health, KMSCL procured and distributed PPE Kits, N95 Masks, double layer/Triple layer masks and hand sanitizers to all districts head quarters through the District Drug Warehouse managed by KMSCL. From the District Warehouses the above items were judiciously issued to prioritized centres where all preventive measures against the viral disease outbreak has taken place in concurrence with District Administration ancl W.P(C) No.8260/2020 17 District Health Authorities. Daily basis monitoring and replenishment of stocks is being done at the head quarters of KMSCL. Adequate number of all protective equipment and other supplies are available with KMSCL to cater the needs of Government owned institutions across the State.
4. The District authorities are taking various measures as per the provisions of Disaster Management Act. State Government is pro actively handling the reported shortage of face masks. It is submitted that Kerala State Drugs and Pharmaceuticals (KSDP) based in Alappuzha has began productions of hand sanitizers in order to beef up the availability. State Government is pro-actively handling the issues and the reported shortage of masks and sanitizers. As per G.O.(Rt) No. 620/2020/LSGD dated 14.03.2020, Government directions to Local Self Government Institution regarding prevention and control of this epidemic.
5. There is a huge public demand for sanitizers and masks, all of a sudden, there was a sudden scarcity, which was only a temporary phenomenon that has occurred in the State as similar to the situation countrywide. The Drugs Controller of Kerala State has risen to the occasion and has made all efforts to boost the production of sanitizers in the state by permitting additional 3 manufacturers in the State to manufacture the same from their premises. This includes the State owned Pharmaceutical Manufacturer, the Kerala State Drugs & Pharmaceuticals Ltd., Alappuzha. This has ensured that sufficient quantity is made available for the day to day use in the health care sector as well as for public who desires to use the same.
6. The officers of the Drugs Control Department has conducted state wide raids to unearth illegally manufactured products as a W.P(C) No.8260/2020 18 safeguard to public health and has seized around 6 different products from across the State which were manufactured without valid licenses. It was also ensured by the officers of the Drugs Control Department that sanitizers are not sold at exorbitant prices even though they are not controlled items under Drugs Price Control Order, 2013. The officers of the Drugs Control Department will be continuing these exercises to ensure that no malpractices are carried out by anyone.
7. The Drugs Control Department has also issued press release warning the dealers not to dispense medicines without prescriptions, for symptoms like cold, fever, cough, sore throat, etc. and has intimated this officers to keep a strict vigil on this matter and also on the scrupulous activities like hoarding/excess pricing of sanitizers and masks by the dealers in the interest of the public. He has also urged the Association of Pharmaceutical dealers to make aware their members to refrain from any activities which may adversely affect the public. Even though the product face masks does not come under the ambit of the laws enforced by the Drugs Control Department and his officers, as a social responsibility he has urged all the traders dealing with drugs and pharmaceuticals to put in their effort to make available the same from the sources of manufacturers within and outside the State and to make available the same to the public at the maximum retail price printed on it or at a lower prices if affordable. To prevent black marketing of sanitizers and masks and other essential consumables, the exercising power under Sections 34(j) and (m) of The Disaster Management Act 2005, District Collector, Ernakulam issued order authorizing Assistant Drugs Controller to initiate action. True copy of the order issued by the District Collector, Ernakulam is produced herewith and W.P(C) No.8260/2020 19 marked as Annexure R3 (f). Similar steps are being taken by other District Collectors also. As per Exhibit P2, Central Government issued notification to include masks and hand sanitizers as an essential commodity. Legal action will be taken under the Essential Commodities Act also to prevent the black marketing of sanitizers and masks.
8. It is submitted that the Health Department is taking all steps to prevent the spread of the virus and coordinating all activities on a day-to-day basis. Orders are being issued to monitor all activities. To make the public aware, information is given through media and televisions from time to time by the Health Department. The instructions, guidelines and directions are available in the Website
-- www.dhs.kerala.gov.in of the Health Department of Kerala. Day- to- day bulletin is also issued for giving information to the public. A printout of the guidelines and information to the public published by the Department from time to time is produced for perusal. Recording the steps taken by the Health Department, the 3rd respondent sought for dismissal of the writ petition."
10. In support of the contention that adequate precautionary measures are being taken to prevent community spread disease, as well as for monitoring and replenishment of stocks of both, masks and sanitizers, and other protective equipments and supplies available with the Kerala Medical Services corporation Ltd., (KMSCL), and action taken by the officers of Drugs Control Department, our attention was also invited to the documents enclosed along with the statement filed on behalf of the third respondent, particularly, to the notification dated 17.03.2020 [Annexure-R3(b)] issued by W.P(C) No.8260/2020 20 Principle Secretary, Disaster Management (A) Department, Government of Kerala, which is reproduced:
"GOVERNMENT OF KERALA Abstract Disaster Management department-Treating Covid-19 as a notified disaster and permitting to use State Disaster Response fund (SDRF)- Items and Norms of assistance from SDRF - Orders Issued
---------------------------------------------------------------------------------------
DISASTER MANAGEMENT (A) DEPARTMENT G.O.(Ms.) No.9/2020/DMD Dated, Thiruvananthapuram, 17/03/2020
----------------------------------------------------------------------------------- Read:- 1) G.O.(Ms.) No.194/2015/DMD dated 20-05-2015.
2) Letter No.DM/233/2020/SDMA dated 16.03.2020 from Member Secretary, Kerala State Disaster Management Authority.
ORDER As per GO read as 1st paper above, Government of Kerala ordered Natural Calamity Norms for Relief Assistant to the victims from SDRF/NDRF for the period 2015-2020. In the wake of Covid-19 Virus outbreak in the Country, Government of India has decided to treat Covid- 19 as a Notified Disaster and have permitted the use of Sate Disaster Response Fund (SDRF) and has partially modified the norms of assistance from State Disaster Response Fund.
2) Member Secretary, Kerala State Disaster Management Authority has reported that the allocation of SDRF for the financial year 2019-20 is Rs.224 Crores and has requested to issue orders in line with the Government of India directions and authorise the use of funds from SDRF.
3) Government have examined the matter in detail and are pleased to permit to use up to 25% of the SDRF allocation for the year for 'Measures for quarantine, sample collection and screening' and up to 10% of SDRF allocation for 'Procurement of essential equipment/labs for response to COVID-19'.
W.P(C) No.8260/2020 21
4) The norms of assistance permitted are annexed to this order. The Government Order read as 1st paper is modified."
11. Apart from the above, it could be deduced that in order to curtail COVID-19 as per the instructions given by the Department of Health, KMSCL has procured and distributed PPE Kits, N95 Masks, double layer/triple layer masks and hand sanitizers to all the district head quarters, through the District Drug Warehouse managed by KMSCL. A consolidated statement of the stock position of the quantity of hand sanitizers, double layer mask and triple layer mask etc., available in each districts, in the State of Kerala, as on 16.03.2020 - COVID-19 Pandemic, is also placed on record.
12. Based on the data enclosed in the paper book, bills for the purchase of masks/sanitizers, as the case may be, from various medical shops, learned counsel for the petitioner contended that there is imminent necessity to take immediate action for closing down all shops, including shopping malls, schools, theaters, universities and tourist places in the State temporarily. She further added that examinations are being conducted in the schools and colleges without giving serious attention to the magnitude of the disease, the way in which, the virus is likely to spread, infect others and endanger human life.
13. Based on the above grounds, learned counsel for the petitioner made submissions.
W.P(C) No.8260/2020 22
14. Heard learned counsel for the parties and perused the material available on record.
15. Government of Kerala, Department of Health and Family Welfare, have issued "nCoronoa -Guidelines" on 26.01.2020 and the same reads thus: W.P(C) No.8260/2020 23 W.P(C) No.8260/2020 24 W.P(C) No.8260/2020 25 W.P(C) No.8260/2020 26 W.P(C) No.8260/2020 27 W.P(C) No.8260/2020 28 W.P(C) No.8260/2020 29 W.P(C) No.8260/2020 30 W.P(C) No.8260/2020 31 W.P(C) No.8260/2020 32 W.P(C) No.8260/2020 33 W.P(C) No.8260/2020 34 W.P(C) No.8260/2020 35 W.P(C) No.8260/2020 36 W.P(C) No.8260/2020 37 W.P(C) No.8260/2020 38 W.P(C) No.8260/2020 39 W.P(C) No.8260/2020 40 W.P(C) No.8260/2020 41 W.P(C) No.8260/2020 42 W.P(C) No.8260/2020 43 W.P(C) No.8260/2020 44 W.P(C) No.8260/2020 45 W.P(C) No.8260/2020 46 W.P(C) No.8260/2020 47 W.P(C) No.8260/2020 48 W.P(C) No.8260/2020 49
16. Exhibit-P1 is the information released by the Union of India, represented by Ministry of Health and Family Welfare, New Delhi, 1 st respondent, through Public Information Bureau on 12.3.2020 and the same is reproduced.
"Update on COVID-19: Preparedness and Actions taken Posted on: 12 MAR 2020 3:45 PM by PlB Delhi Novel Coronavirus Disease (COVID-19) is now officially a global pandemic. With over 118,000 corona virus cases sweeping across 114 countries of the world, the World Health Organization declared it a pandemic yesterday.
Hon'ble Prime Minister Shri Narendra Modi ji is constantly monitoring and reviewing the situation with the top officials of the concerned Ministries/Departments and States/UTs since the first case was declared on 31st December, 2019 in the city of Wuhan in China.
India's response was initiated on 8th January, much before WHO declared COVID-19 as a public health emergency on 30 th Jan., 2020. States were directed for health sector preparedness on 17th Jan., 2020. Same day, point of entry surveillance was also initiated.
Various measures have been taken by the Central Ministries along with States/Union Territories in terms of strengthened community surveillance, quarantine-facilities, isolation wards, adequate PPEs, obtained manpower, rapid response teams for management of COVID-
19. Screening at airports was started on 17 th January at 3 airports (Mumbai, Delhi and Kolkata) which was extended to 4 more airports (Chennai, Cochin, Bengaluru, Hyderabad) on 21 st Jan., 2020 and subsequently extended to 30 airports. All incoming passengers are being universally screened at the 30 airports. Similarly, screening was initiated for vessels arriving at l2 major ports and 65 non-major ports.W.P(C) No.8260/2020 50
India has always prioritized the safety and welfare of its citizens abroad and mounted timely evacuation of its citizens starting 1 st February, 2020' from COVID-19 affected countries. So far, the Government of India has evacuated 900 Indian citizens along with 48 belonging to other nationalities like Maldives, Myanmar, Bangladesh, China, US, Madagascar, Sri Lanka, Nepal, South Africa and Peru.
In addition, 83 evacuees from Italy, who arrived yesterday have been housed at Manesar facility for quarantine. All patients in the hospitals are being treated and reported to be stable. On the directions of the Hon'ble Prime Minister, a high-level Group of Ministers was constituted to continuously monitor the situation and evaluate preparedness and formulate measures regarding management of COVID-19 in the country. The GoM has met 6 times so far, guiding, reviewing and monitoring the situation.
In view of the rapidly evolving situation, two meetings of the GoM were held yesterday. The GoM deliberated on various precautionary measures which may be considered in the interest of the citizens of India. Based on the recommendations of the Committee of Secretaries chaired by Cabinet Secretary, the GoM made some important decisions last evening which are as follows:
• All existing visas (except diplomatic, official, UN/International Organizations, employment, project visas) stand suspended till 15th April, 2020. This will come into effect from 1200 GMT on 13th March, 2020 at the port of departure.
• Visa free travel facility granted to OCI card holders is kept in abeyance till 15th April 2020. This will come into effect from 1200 GMT on 13th March, 2020 at the port of departure. • OCI card holders already in India can stay in India as long as they want.
• Visas of all foreigners already in India remain valid and they may contact the nearest FRRO/FRO through e-FRRO module for extension/conversion etc. of their visa or grant of any consular service, if they choose to do so.W.P(C) No.8260/2020 51
• Any foreign national who intends to travel to India for compelling reason may contact the nearest Indian Mission. • In addition to Visa restrictions already in place, passengers traveling from having visited Italy or Republic of Korea and desirous of entering India will need certificate of having tested negative for COVID-19 from the designated laboratories authorized by the health authorities of these countries. This is in enforcement since 0000 hrs. of 10 th March, 2020 and is a temporary measure till cases of COVID-19 subside. • All incoming travellers, including Indian nationals, arriving from or having visited China, Italy, Iran, Republic of Korea, France, Spain and Germany after 15 th February, 2020 shall be quarantined for a minimum period of l4 days. This Will come into effect from I200 GMT on 13 th March 2020 at the port of departure.
• Incoming travellers, including Indian nationals, are advised to avoid non-essential travel and are informed that they can be quarantined for a minimum of 14 days on their arrival in India. • Indian nationals are further strongly advised to refrain from travelling to China, Italy, Iran, Republic of Korea, France, Spain and Germany.
• All incoming international passengers returning to India should self- monitor their health and follow required do's and don'ts as detailed by the Government.
• International traffic through land borders will be restricted to designated check posts with robust screening facilities. These will be notified separately by M/o Home Affairs. • All international Passengers entering into India are required to furnish duly filled self-declaration form in duplicate (including personal particulars, phone no. and address in India) to Health Officials and Immigration officials and undergo Universal Health Screening at the designated health counters at all Points of Entry.
As of now, 73 cases are confirmed for COVID-l9. Three of these cases from Kerala have recovered and been discharged."
17. Government of Kerala, Health & Family Welfare Department, nCoronoa Virus Outbreak control and Prevention State Cell, have issued revised guidelines for testing, quarantine, hospital admission and discharge W.P(C) No.8260/2020 52 for COVID-19 based on current risk assessment on 12.03.2020 and the same is extracted hereunder:
W.P(C) No.8260/2020 53W.P(C) No.8260/2020 54 W.P(C) No.8260/2020 55 W.P(C) No.8260/2020 56 W.P(C) No.8260/2020 57 W.P(C) No.8260/2020 58 W.P(C) No.8260/2020 59 W.P(C) No.8260/2020 60 W.P(C) No.8260/2020 61 W.P(C) No.8260/2020 62 W.P(C) No.8260/2020 63
18. Exhibit-P2 is the Notification No.S.O.1087(E) dated 13.03.2020 and the same is extracted hereunder:
"MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION (Department of Consumer Affairs) NOTIFICATION New Delhi, the 13th March, 2020 S.O. 1087(E).--In exercise of the powers conferred by sub- section (2) of section 2A, of the Essential Commodities Act, 1955 (10 of l955), the Central Government, hereby makes the following Order, to regulate the production, quality, distribution, logistics of masks (2ply & 3ply surgical masks, N95 masks) & hand sanitizers (for COVID l9 management) namely :---
1. (1) This order may be called the Essential Commodities Order, 2020.
(2) It shall come into force from the date of its publication in the Official Gazette.
2. In the Essential Commodities Act, 1955, in the Schedule, after serial No. (7), the following item shall be added, namely:-
"(8) masks (2ply & 3ply surgical masks, N95 masks) & hand sanitizers".
3. This Notification shall remain in force for a period up to 30 th June, 2020 from the date of its publication in the Official Gazette.
[F. No. 26(1)/2020-ECR&E] A. K. CHOUDHARY, Economic Adviser"
19. Exhibit-P3 is the news item reported, in Mathrubhumi.com on 10.03.2020, along with its translation, and the same is reproduced.W.P(C) No.8260/2020 64
TRANSLATION OF EXHIBIT-P3 "Mathrubhumi.com The mask priced at Rs.370/- in December, is having Rs.1600/- in February;
Extensive raid 10/3/2020 Kochi: In the wake of high alerts regarding Corona, it has been found there is an attempt to defraud in the sale of masks in the State. lt was in the inspection conducted by the Drugs Controller that there are attempts to record exorbitant prices on the packets of masks. It was as per the direction of the District collector following the complaints that the masks are being hoarded and being sold at exorbitant prices that the Drugs Controller, carried out the raid. The raids were conducted in 10 places in and around Ernakulam city.
In the raid, it was found that the price of the same type of masks was increased more than five times in a few months. The price noted in the packet of 100 masks bearing the Batch No.591, manufactured in December was Rs.370/-, whereas the price noted in the packet of 100 masks bearing the Batch No.593, manufactured in February was Rs.1600/-. Rs.40/- is printed as M.R.P. on the packets of mask which were available for Rs.5/-.Now, these are being sold for Rs.20-25/-. Benny Mathew, the Regional Drugs Controller that was on complaint that the price of masks has been increased by five times that the rais were conducted. "There is a shortage of masks. According to the manufacturers, as the supply of the raw materials from China had stopped, there is increase in the production cost. However, there are no circumstances that the prices should be escalated this rate within months."- Benny Mathew told Mathrubhumi.com.W.P(C) No.8260/2020 65
He has added that the report in this regard will be submitted before the Collector. Even if it is being sold through the Medical shops, masks do not come under the Drugs and Cosmetics Act. The Regional Drugs Inspector clarified that it was the District Collector who has to take action as per the provisions of the Disaster Management Act."
20. Exhibit-P6 is the memorandum dated 15.03.2020 issued by the High Court of Karnataka and the same is reproduced.
"HIGH COURT OF KARNATAKA DATED 15th March, 2020 MEMORANDUM The World Health Organization has declared the Novel Corona Virus (COVID-19) as pandemic. The Ministry of Health and Family Welfare, Government of India has issued a Memorandum cautioning the general public to stay away from mass gatherings to curtail spread of the said disease. To avoid such mass gatherings, the State Government has also taken a decision to close down the shopping malls, schools, theaters, colleges, universities, anganavadis and tourist places.
Having regard to the safety of all the litigants, lawyers, visitors to the Court premises and Court staff, and with a view to assist the efforts made by both the Central and the State Governments to prevent spread of said COVID-19, Hon'ble the Chief Justice has issued the following directions which will operate till further orders:
i) The High Court of Karnataka in its principal seat at Bengaluru and Benches at Dharwad and Kalaburagi will take up only urgent matters;W.P(C) No.8260/2020 66
ii) Cause lists will be displayed as usual and the Courts will hold sitting at 10.30 a.m. Only those matters on the cause list, which are stated to be urgent by the members of the Bar or parties-in-person will be taken up at the discretion of the Court. The other matters will be taken up provided, all the contesting parties on both the sides consent for taking up the matters. In respect of the remaining matters on the cause list, dates will be assigned as per the discretion of the concerned Courts;
iii) The enclosed general advisory should be given wide publicity by displaying it at prominent places in the Court premises and by circulating it to the members of the Bar as well as staff;
iv) The members of the Bar as well as staff should be advised to strictly follow the said advisory by taking all precautions as mentioned therein;
v) The members of the staff who are showing the symptoms, as disclosed in the enclosed advisory should immediately consult Government Health Department officials and in emergent cases, contact Arogya Sahayavani at Phone No.-104;
vi) From Tuesday 17th March, 2020, the visitors to the High Court (except the members of the Bar) will be subjected to thermal screening by the officials of the Health Department of the State Government. The members of the staff will be subjected to thermal screening in High Court Offices.
vii) Guidelines regarding use of masks are appended along with this memorandum. All concerned are requested to follow the same.
By order of Hon'ble the Chief Justice, Sd/-
(Rajendra Badamikar) Registrar General
21. The consolidated stock position of masks and sanitizers as on 16.03.2020-COVID-19 Pandamic, is extracted hereunder: W.P(C) No.8260/2020 67 W.P(C) No.8260/2020 68 W.P(C) No.8260/2020 69 W.P(C) No.8260/2020 70
22. Advisory on Social Distancing Measure in view of spread of COVID-
19 disease issued by the Ministry of Health & Family Welfare, reads thus:
"Advisory on Social Distancing Meausre in view of spread of COVID-19 disease Social distancing is a non-pharmaceutical infection prevention and control intervention implemented to avoid/decease contact between those who are infected with a disease causing pathogen and those who are not, so as to stop or slow down the rate and extent of disease transmission in a community. This eventually leads to decrease in spread, morbidity and morality due to disease.
In addition to the proposed the interventions, the State/UT Governments may prescribe such other measures as they consider necessary.
All these proposed interventions shall be in force till 31 st of March, 2020. They will be reviewed as per the evolving situation.
The following interventions are proposed:
1. Closure of all educational establishments, (schools, universities etc.). Gyms, museums, cultural and social centres, swimming pools and theatres. Students should be advised to stay at home. Online education to be promoted.
2. Possibility of postponing exams may be explored.
Ongoing exams to be conducted only after ensuring physical distance of one meter amongst students.
3. Encourage private sector organizations/employers to allow employees work from home wherever feasible.
4. Meetings, as far as feasible, shall be done through video conferences. Minimize all reschedule meetings W.P(C) No.8260/2020 71 involving large number of people unless necessary.
5. Restaurants to ensure hand washing protocol and proper cleanliness of frequently touched surfaces. Ensure physical distancing (minimum 1 metre) between tables: encourage open air seating where practical with adequate distancing.
6. Keep already planned weddings to a limited gathering, postpone all non-essential social and cultural gatherings.
7. Local authorities to have a dialogue with organizers of sporting events and competitions involving large gatherings and they may be advised to postpone such events.
8. Local authorities to have a dialogue with opinion leaders and religious leaders to regulate mass gatherings and should ensure no overcrowding/at least one metre distance between people.
9. Local authorities to have meeting with traders associations and other stakeholders to regulate houses, exhibit DO's and Don'ts and take up a communication drive in market places like sabzi mandi, anaj mandi, bus depots, railway stations, post-offices etc., where essential services are provided.
10. All commercial activities must keep a distance of one meter between customers. Measures to reduce peak hour crowding in markets.
11. Non-essential travel should be avoided. Buses, Trains and aeroplanes to maximize social distancing in public transport besides ensuring regular and proper disinfection of surfaces.W.P(C) No.8260/2020 72
12. Hospitals to follow necessary protocol related with COVID-19 management as prescribed and restrict family/friends/children visiting patients in hospitals
13. Hygiene and physical distancing has to be maintained.
Shaking hands and hugging as a matter of greeting to be avoided.
14. Special protective measures for delivery men/women working in online ordering services.
15. Keep communities informed consistently and constantly.
Ministry of Health and Family Welfare"
23. Memorandum dated 15.03.2020 issued by the High Court of Kernataka cannot be ipso facto applicable to State of Kerala. However, we are of the view that giving anxious and due consideration to the Advisories issued both by Union of India and Government of Kerala, preventive measures have to be taken. Steps to be taken by Government of Kerala depends upon the decisions, taken from time to time.
24. Section 2 of the Epidemic Diseases Act, 1897 confers power on the State Government, to take special measures and prescribe regulation as to dangerous epidemic disease and the same read thus:
"2. Power to take special measures and prescribe regulations as to dangerous epidemic disease.--(1) When at any time the State Government is satisfied that the State or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease, the State Government, if it thinks that the ordinary provisions of the law for the time W.P(C) No.8260/2020 73 being in force are insufficient for the purpose, may take, or require or empower any person to take, such measures and, by public notice, prescribe such temporary regulations to be observed by the public or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease or the spread thereof, and may determine in what manner and by whom any expenses incurred (including compensation if any) shall be defrayed.
(2) In particular and without prejudice to the generality of the foregoing provisions, the State Government may take measures and prescribe regulations for--
*****
(b) the inspection of persons travelling by railway or otherwise, and the segregation, in hospital, temporary accommodation or otherwise, of persons suspected by the inspecting officer of being infected with any such disease.
2A. Powers of Central Government.--When the Central Government is satisfied that India or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof, the Central Government may take measures and prescribe regulations for the inspection of any ship or vessel leaving or arriving at any port in the territories to which this Act extends and for such detention thereof, or of any person intending to sail therein, or arriving thereby, as may be necessary."
25. As per Section 3(2)(c) of the Essential Commodities Act, power is conferred on the Government to control the price at which any essential W.P(C) No.8260/2020 74 commodity may be bought or sold.
26. Giving due consideration to the grievance expressed by both the writ petitioner, as well as, by the Indian Medical Association, respondent No.7, and taking note of the suggestions/advisories/guidelines/orders issued by the World Health Organisation and the materials on record, including medical bills etc., produced by the petitioner, we are of the view that it is for the Government of Kerala to consider the issues raised. Therefore, we are not inclined to grant prayer No.1 sought for by the petitioner.
27. However, we are of the view that social gatherings are now stated to be one of the reasons for the community spread disease and that social distancing is the advisory of both, the Central and State Government. It is for the Government of Kerala to closely monitor the educational institutions, universities, shopping malls, theaters and tourist places in the State and such other places, where there is possibility of large gatherings.
28. Suggestions of Union of India, Ministry of Health and Family Welfare be duly taken note of by Government of Kerala, on the fact situation, in order to protect the wide spread of the epidemic disease.
29. All the institutions, across State of Kerala, are directed to implicitly follow the periodical guidelines issued by Government of Kerala, regarding COVID-19.Accordingly, Government of Kerala is directed to issue orders directing precautionary measures to the prevent wide spread of W.P(C) No.8260/2020 75 community disease, take stringent action against those, who take advantage of the situation and create an artificial scarcity of sanitizers and masks, and exercise the power under the Essential Commodities Act and the rules made therein forthwith, to regulate possession, sale and the price of essential commodities viz., masks and sanitizers and such other products, required for prevention and control of the spreading of the virus.
30. Government of Kerala is also directed to take steps to keep constant vigil on all those, who are likely to sell/market sanitizers/masks, as the case may be, on higher rates.
31. Government of Kerala is also directed to make known the advisories issued by the Government of India/Government of Kerala to the general public, by issuing paper publications. Government of Kerala is also directed to explore the possibilities of getting the assistance of voluntary organizations/institutions, who come forwarded to create awareness among the public.
32. Government of Kerala is also directed to explore the possibilities of inviting Non-Governmental Organizations or any other institutions for manufacturing masks/sanitizers, as per the guidelines issued by the World Health Organizations.
33. The Principal Secretary to the Government, Department of Health and Family Welfare, Thiruvananthapuram, (respondent No.3), is directed to W.P(C) No.8260/2020 76 explore the possibilities of directing the Health Department of Kerala or any other institutions, like KMSCL, for manufacturing masks/sanitizers, as the case may be.
34. From the materials on record, it could be deduced that periodical monitoring is being done by Government of Kerala. As we have observed in the foregoing paragraphs right from 26.01.2020 and thereafter, on 12.03.2020, advisories have been issued by Government of Kerala. Thereafter, Government of Kerala have issued orders on 17.03.2020 declaring COVID-19 as a notified disaster and permitted to use 25 of the State Disaster Response Fund (SDRF) allocation for the year for 'measures for quarantine, sample collection and screening' and upto 10% of SDRF allocation for 'procurement of essential equipment/labs for response to COVID-19'. Government have also issued G.O.(Rt.) No.321/2020/DMD dated 13.03.2020 sanctioning release of Rs.7,18,77,225/- to Kerala Medical Services Corporation Ltd., for making necessary procurement for all health facilities so as to avoid the out of pocket expenditure.
35. From the materials on record as well as the submission of learned counsel for the parties, it could be deduced that there is a huge demand for face masks and hand sanitizers. But, it cannot be lost sight of the fact that there is scarcity, as well. Government of Kerala in their statement have made it clear that all efforts are being taken to boost the production of W.P(C) No.8260/2020 77 sanitizers/masks in the State, by permitting additional three manufacturers. This includes, State owned Pharmaceutical Manufacturer, Kerala State Drugs and Pharmaceuticals Ltd., Alappuzha etc., in addition to KMSCL.
36. Learned State Attorney has further submitted that the maximum retail price for the masks and sanitizers shall be notified, immediately in letter and spirit.
37. From the bills produced by the petitioner, it is discernible that masks are being sold at a higher rate. By virtue of notification issued under the Essential Commodities Act, in the light of the decision of the Hon'ble Apex Court in Potta Sanyasi Rao's case (cited supra), and taking note of the magnitude of the situation prevailing as on today, Government of Kerala is directed to issue appropriate notification forthwith, so that the abovesaid commodities are not sold at higher rates.
38. Sale of the abovesaid commodities at higher rates, shall be viewed seriously, and prompt action shall be taken in accordance with law.
39. Though Government of Kerala in the statement have stated that, to create public awareness, information is given through media and television from time to time by the Health Department, and also contended that as notifications/guidelines/orders issued periodically are also available in the website - www.dhs.kereala.gov.in of the Health Department of Kerala, and that day-to-day bulletin is also issued for giving information to the W.P(C) No.8260/2020 78 public, it is desirable that sufficient paper publication be made both in Vernacular and in English newspapers, and in any other mode so that the same reaches the public, at every corner of the State.
40. Government shall conduct awareness and sensitization programmes and for that purpose, print and visual medias shall be used. Governments, both Central and State, shall explore the possibilities of directing Private television channels as well as social medias, to come forward to conduct sufficient awareness programmes about the likelihood of spread of the disease as well as precautionary measures to be taken.
41. Latest daily bulletin issued on 17.03.2020-COVID-19 Outbreak Control and Prevention State Cell, Health & Family welfare Department, Government of Kerala is extracted hereunder:
"Appeal to Public W.P(C) No.8260/2020 79 W.P(C) No.8260/2020 80 W.P(C) No.8260/2020 81 W.P(C) No.8260/2020 82
42. Directorate of Health Services, has also issued notifications/ guildeines, in the official website, which reads thus:
"DIRECTORATE OF HEALTH SERVICES ABOUT US - COVID 19 - DIVISIONS - DOCUMENTS - RTI - TENDERS - PUBLICATIONS DOWLOADS - MEDIA - CONTACT US GUIDELINES • Advisory - airport arrangements and flow chart • Revised Guidelines for Testing, Quarantine, Hospital admission and discharge of COVID 19 based on current risk assessment. • Matrix for Discharge of persons from home Isolation/Hospital Isolation based on risk assessment grid dated-19th Feb.,2020. • Local Self Government Institutions shall do the information regarding Corona.
• Responsibilities of the Tourism Department regarding the control of Corona outbreak.
• Responsibilities of Department of Education regarding control of Corona outbreak.
• Policy on Bio-Medical Waste Management for BNW from Patients in Novel Corona Virus Ward/OPD • Addendum to the Testing, Quarantine, Hospital admission and discharge criteria for nCoV • Revised guidelines for nCorona virus surveillance • nCorona-Health advisory for Tourism Department dated-5th Feb.
2020 • nCorona-Health advisory for Animal care-Animal Husbandry Department dated-5th Feb.2020 W.P(C) No.8260/2020 83 • Testing Quarantine, hospital Admission and discharge criteria • Testing, Collection and Transportation for Lab diagnosis-Guidelines • Constitution of State RRT • Constitution of State Medical Board • TDR for State Level Committees • What are things to know about prevention of Corona Virus? • nCorona Guidelines-2020 Updated on 26/1/2020"
43. Though, Mrs. Daisy A. Philipose, learned counsel for the petitioner made strenuous arguments, in support of the first prayer to the writ petition viz., Issue a writ of mandamus directing State of Kerala, represented by the Chief Secretary, Secretariat, Thiruvananthapuram (respondent No.2) to take immediate action to close down all the places where public gather, including shopping malls, schools, theaters, universities and tourist places in the State temporarily, we are not inclined to issue any mandamus. However, we direct the Government to keep vigil over the issue, monitor on a day-to-day basis, the number of cases reported for screening, number of persons quarantined, likelihood of spread of an epidemic situation and such other factors, more fully set out in the foregoing paragraphs and taken appropriate decisions.
44. On the aspects of availability of masks/sanitizers, inviting our attention to Annexure-R3(d), which is the detailed statement showing the current available stock of the commodities, learned State Attorney submitted that adequate masks and sanitizers are available in each districts.
Furthermore, masks are being manufactured in jails.W.P(C) No.8260/2020 84
45. In the light of the above discussions, we direct State of Kerala represented by the Chief Secretary, Secretariat, Thiruvananthapuram; the Principal Secretary to the Government, Department of Health and Family Welfare, Secretariat, Thiruvananthapuram; The Drugs Controller, Thiruvananthapuram; the Deputy Collector, Ernakulam and the District Collector, Kakkanad - respondent Nos.2 to 6 respectively - to take measures to control the price rise of the essential commodities, viz., face masks and hand sanitizers, and ensure adequate supply of the said commodities in the State of Kerala, subject to the manufacturing capacity.
Writ petition is allowed in part.
Learned State Attorney is directed to communicate the directions of this Court insofar as the issuance of Government orders/notifications, as the case may be, for fixing the maximum retail price for hand sanitizers and face masks, as well as issuing regulations for possession, purchase, and sale of the abovesaid essential commodities forthwith.
SD/-
S.MANIKUMAR CHIEF JUSTICE SD/-
SHAJI P.CHALY
Krj.17/3 JUDGE
W.P(C) No.8260/2020 85
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE INFORMATION RELEASED BY THE 1ST
RESPONDENT THROUGH PUBLIC INFORMATION BUREAU ON 12/3/2020.
EXHIBIT P2 A TRUE COPY OF THE NOTIFICATION NO.S.O.1087(E) DATED 13/3/2020.
EXHIBIT P3 A TRUE COPY OF THE REPORTED IN MATHRUBHUMI COM, ON 10/3/2020, WITH ITS TRANSLATION.
EXHIBIT P4 A TRUE COPY OF THE BILL FOR A FACE MASK ISSUED ON 23/1/2020, BY M/S.LABORATORY EQUIPMENT STORES, M.G.ROAD, KOCHI.
EXHIBIT P5 A TRUE COPY OF THE BILL FOR A FACE MASK ISSUED ON 9/3/2020, BY M/S.AYATHIL MEDICALS, KOLLAM - 4.
EXHIBIT P6 A TRUE COPY OF THE MEMORANDUM DATED 15/3/2020 ISSUED BY THE HIGH COURT OF KERALA.
EXHIBIT P7 A TRUE COPY OF THE SITUATION REPORT NO.56 DATED 16/3/2020 FROM THE WEBSITE MAINTAINED BY THE WORLD HEALTH ORDANISATION REGARDING THE SPREADING OF THE COVID-19 DISEASE, ALL OVER THE WORLD.
EXHIBIT P8 A TRUE COPY OF THE GUIDELINES PUBLISHED IN THE WEBSITE MAINTAINED BY THE 1ST RESPONDENT, TO PREVENT SPREADING OF THE COVID-19 DISEASE.
EXHIBIT P9 A TRUE COPY OF THE BILL FOR A FACE MASK ISSUED ON 17/3/2020 BY M/S. PHARMAX MEDICALS, HIGH COURT JN. KOCHI-35.
EXHIBIT P10 A TRUE COPY OF THE BILL FOR A FACE MASK ISSUED ON 17/3/2020 BY M/S. VIMAL MEDICALS, M.G.ROAD, KOCHI-35.
EXHIBIT P11 A TRUE COPY OF THE BILL FOR A FACE MASK ISSUED ON 17/3/2020 BY M/S. JP MEDICALS, HIGH COURT ROAD. KOCHI-35.
EXHIBIT P12 A TRUE COPY OF THE BILL FOR HAND SANITIZER ISSUED ON 17/3/2020 BY M/S. YESHODHA PHARMA, BANERJI ROAD, KOCHI-31.W.P(C) No.8260/2020 86
EXHIBIT P13 A TRUE COPY OF THE BILL FOR HAND SANITIZER ISSUED ON 17/3/2020 BY M/S. SUMI MEDICALS, HIGH COURT JN. KOCHI-35.
EXHIBIT P14 A TRUE COPY OF THE BILL FOR HAND SANITIZER ISSUED ON 17/3/2020 BY M/S. VITHAYATHIL MEDICALS, KOCHI-31.
RESPONDENTS' ANNEXURES:-
R3(A):- TRUE COPY OF G.O(RT.) NO.560/2020/H&FWD DATED 11.03.2020 R3(B):- TRUE COPY OF G.O.(MS) NO.9/2020/DMD DATED 17.03.2020.
R3(C):- TRUE COPY OF G.O.(MS) NO.321/2020/DMD DATED 13.03.2020.
R3(D):- TRUE COPY OF THE DETAILED STATEMENT SHOWING THE CURRENT AVAILABLE STOCK OF ITEMS.
R3(E):- TRUE COPY OF THE G.O(RT) NO.620/2020/LSGD DATED 14.3.2020.
R3(F):- TRUE COPY OF THE ORDER DATED 9.3.2020 ISSUED BY THE DISTRICT COLLECTOR, ERNAKULAM ALONG WITH ENGLISH TRANSLATION.
R7(A):- TRUE COPY OF THE WHO RECOMMENDATIONS FOR HANDRUB FORMULATIONS.
R7(B):- TRUE COPY OF THE RELEVANT PAGES OF THE FIXED DOSE COMBINATIONS APPROVED BY DCG(I) FOR HAND HYGIENE FORMULATIONS.
//TRUE COPY// P.A. TO JUDGE