Calcutta HC seeks response from the State Government on steps being taken to increase Rapid-Testing of COVID-19 in West Bengal

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Facts of the Case:

On 8th April 2020, Dr Faud Halim had initiated public interest litigation seeking direction “to ensure that proper protective and preventive measures are taken by the State as well as by the Union of India to prevent further spread of such virus as well as for other relief.”

The Court has directed the Respondents’ to report the steps taken to prevent the spread of the virus, facilities available for testing patients and measures taken to provide PPE to the medical professionals in the frontline.

Chief Justice Thottahil B. Radhakrishnan and Justice Arijit Banerjee heard the matter on 17th April 2020.

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W.P No. 5328(W) is being treated as the lead case in the matter of three other petition letters received by the Chief Justice. According to the court, all the letters are on the same subject and all the issues relevant for consideration are placed on record in W.P No. 5328(W).

Arguments of the Learned Advocate General:

  • Learned Advocate General argued that the writ petition is not maintainable as the petitioner is a political activist and has not disclosed his political affiliations to any particular party during filing the writ petition.
  • He argues that the petition has been submitted because of political motives and not in the public interest.
  • Advocate General cited on the Supreme Court Judgements reported in (2005) 2 SCC 136, (2006) 6 SCC 613, (2013) 2 SCC 398, (2004)3 SCC 349, (2010) 3 SCC 402 to make the point that writ petition cannot be entertained as a Public Interest Litigation.
  • He submitted that if the Court is of the view that the larger public interest has to be looked into by this court in its exercise of the extraordinary jurisdiction of Article 226 of the Indian Constitution, then he would assist the Court to get all the materials to ensure the right steps being taken to handle the COVID-19 pandemic crisis.

Arguments of the Learned Counsel on Behalf of the Petitioner:

  • The learned counsel criticized the manner of certification and the auditing of the reason of death before the issuance of the Death Certificate.
  • The learned counsel also pointed out that so far there is a deficit in facilities for their protection from the point of view of health.
  • The primary concern stated on behalf of the petitioner is that State is allegedly not following the guidelines and advisories submitted by the WHO and the Indian Council of Medical Research (ICMR) in the fight against COVID-19.

The Argument of the Court and the Details of the Writ Petition:

The Court stated that

“This is not an occasion or time for us to consider the maintainability of the writ petition and this is not a matter which should be thrown out at the threshold.”

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The Court emphasized that considering the materials on record requires the Court to have a deeper look into the materials produced by the State Government in the form of affidavits as suggested by the Learned Advocate General.

In its analysis of the matter, the Court clearly stated that “COVID-19 makes no distinction based on caste, creed, colour, sex, religion and domicile or geographical identity to affect any person in any economic strata.”

Therefore, the characteristics to identify whether the current petition is in the public interest shall not hinder further proceedings of the matter. The petition is seeking a direction on the respondent authorities to make rapid testing of the COVID-19 widespread in the State of West Bengal to prevent further spread of the virus.

The filed petition also seeks a direction to convert the Calcutta Medical College to house only COVID-19 patients. The petitioner also asks to improve health infrastructure by arranging test kits as well as proper protective gear for medical professionals and doctors so that they can fight the battle against the epidemic.

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Moreover, the writ petition seeks a direction on the respondent authorities to provide food materials to all sections of the marginalized communities including pregnant women, migrant workers, young mothers and children. The petition seeks an order to prepare a plan and submit it before the Court on how to increase rapid testing for COVID-19.

The Advocate General responded that the matter is being considered further. The Advocate General’s response is placed on record. Thus, the State shall be given liberty to place an affidavit on record including reports submitted from time to time. Furthermore, the reports and materials should be placed on record by the State without awaiting further orders of the Court.

Two Reports Submitted on behalf of the State:

  1. Report of the Secretary, Department of Health and Family Welfare dated 16th April 2020 outlines 47 different aspects of how COVID-19 spreads and the aspects which require the attention of the State;
  2. The second report of the Health Secretary dated 17th April 2020 states that “The total number of samples tested by the ICMR testing laboratories is mentioned in the daily bulletin which is updated on the website of the Department of Health and Family Welfare.” The report highlights that there has been an increase in the number of tests being conducted.

It is to be noted that there was only one testing laboratory in West Bengal when testing for COVID-19 had started. Now, there are seven functioning testing laboratories (5 government and 2 private). Several more are in the process of development. More than 300 samples are being tested daily according to the report.

An advisory has been issued by the State Government on 13th April wherein the ICMR’s latest testing protocol has been advised to the health authorities. In the advisory, all asymptomatic contacts, primary or secondary, have been advised to be tested. All detected SARI (Severe Acute Respiratory Illness) cases have to be tested as well.

The State denies that there is a deficiency in the supply of personal protective equipment (PPE). As of 16th April, according to the Stat’s report, it has supplied “a total of 258805 PPEs, 152460 N-95 masks, 453775 two-layered masks, 917750 three-layered masks, 475000 gloves and 53769 litres of sanitizer.”

The Court submitted that the official respondents should give a deeper look into the requirement of a greater number of samples to be tested. The Court stressed that community spread has to be prevented at all costs.

As for the three points raised by the learned counsel on behalf of the petitioner, namely, the concern of the issuance of death certificates; the protection of medical workers and the State allegedly not following the WHO and ICMR guidelines, the Court has directed the State to issue a response in the manner of a report on the next date of hearing.

The next hearing of the matter is set on 23rd April 2020.


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