Bombay High Court: A Division Bench of R.K. Deshpande and Amit B. Borkar, JJ., while addressing a petition, held that,
“…neither the Central Government nor the State Government can keep the fate of the frontline workers hanging and compel them to perform their jobs and discharge the duties without fear or assurance of safety and protection of their own life and the lives of the family members.”
“All asymptomatic frontline workers working in hospitals & containment zones in Vidarbha region entitled to be tested for COVID-19 on RT-PCR method.”
COVID-19 has spread its tentacles all over the world, which is fighting a war against it. The population of the infected persons is on steep rise and the three major challenges are as follows:
- to prevent the spread-over of the disease Coronavirus
- to detect the persons infected with the disease and its source, i.e. contact tracing, and
- to treat the patients of the disease Coronavirus.
The present petition had been filed seeking to direct ICMR to frame appropriate appropriate guidelines for conducting the Rapid Antibody Test and RT-PCR Test of doctors, nurses, paramedical staff, pharmacists, police personnel, etc. (frontline workers) attending the COVID-19 facilities and accordingly to take such tests to safeguard their lives, which is the guarantee under Article 21 of the Constitution of India.
Another relief is to release all the COVID-19 suspects admitted in the Isolation Wards / Quarantine Wards having tested negative in RT-PCR Test with immediate effect.
The other reliefs claimed include the fixation of price of the Rapid Antibody Test Kit for COVID-19 and to supply it to all the private and government hospitals and nursing homes with a direction to take the first step of screening of non-COVID patients before admitting in the hospital.
Petition also sought the directions in respect of home quarantine and reservation of 50% of beds for COVID-19 patients in all the registered private hospitals and nursing homes.
Rapid Antibody Test of the frontline workers
It is the contention of the petitioner that the test should be undertaken in respect of every person in the containment zones.
Bench in regard to the above aspect stated that,
What we find is that even if the Rapid Antibody Test shows positive result, it is not the conclusive test to hold that the patient is infected with the disease. Similarly, if the test shows negative result, still it cannot be said that the person is not infected with the disease.
According to the respondents, the only conclusive test to determine as to whether a person is infected with the disease is the RT-PCR Test.
Thus in view of the above, Court did not find any point in directing the authorities on the point of Rapid Antibody Test of the frontline workers.
To release all COVID-19 suspects admitted in the Isolation Wards/Quarantine Wards having tested negative in the RT-PCR Test
Commissioner, Nagpur Municipal Corporation made a statement, wherein the following was stated:
“For hospital isolation patient can be discharged after 10 days of symptom onset and no fever for 3 days. There will be no need for testing prior to discharge.”
Thus, in view of the above statement Court did not give any further directions in the above-regard.
Home Quarantine and to prevent contamination of COVID-19 and Reservation of 50% beds in private hospitals
For the above relief sought by petitioner, Court stated that it is a policy decision which is to be guided by instructions issued by ICMR, Centre and State Government.
Further, the ICMR guidelines already include testing of health-care workers and it is critical to understand that there is globally a very limited availability of testing reagents/kits.
Thus, the contention of the petitioner that the RT-PCR Tests should be conducted on frontline workers, also cannot be accepted by the Court.
Further the High Court stated that,
COVID-19 disease of Coronavirus is symptomatic as well as asymptomatic. It may be that an asymptomatic patient carries the disease.
Hence, there cannot be any distinction between all symptomatic contacts of laboratory confirmed cases, including those of health-care workers and of asymptomatic direct and high risk contacts of health-care workers with the laboratory confirmed cases.
Thus, all frontline workers coming in contact of laboratory confirmed cases are entitled to be tested on RT-PCR method.
Commissioner, Nagpur Municipal Corporation, is the “Empowered Officer” under the provisions of Epidemic Diseases Act by the State Government and accordingly the notifications are issued from time to time by him to secure the object and purpose of the enactment.
Bench also observed that, by invoking the provisions of the Epidemic Diseases Act and the Disaster Management Act, the State and Central Government have taken upon themselves an obligation and the responsibility under Article 47, as a part of guarantee under Article 21 of the Constitution of India to save and protect the lives of the people of this nation, more particularly the frontline workers, from COVID-19 (Coronavirus) Pandemic Outbreak.
Life of frontline workers is more precious as they are warriors and saviours, compromising their own life at the stake to save the lives of others.
As observed by the Single Judge Bench of the Court, the Division Bench of this Court also endorses and confirms that the State owes its duty to the frontline warriors to take additional steps or measures, even if the guidelines do not envisage such testing.
High Court also stated that “State is be duty bound to take additional measures and ensure the minimization of the risk to the medical, police personnel and all frontline workers, to protect the fundamental right to life under Article 21 read with the duty under Article 47 of the Constitution of India.”
Therefore, to summarise the order, following has been passed by the bench:
- all asymptomatic frontline workers working in the hospitals and the containment zones in the entire Vidarbha region, shall be entitled to be tested for COVID-19 disease or Coronavirus on RT-PCR method on expressing their willingness, if they are found to be in direct and high risk contact of laboratory confirmed cases.
- ICMR directed to frame policy and prescribe protocol for periodical testing of frontline workers
In the above view, petition was disposed of.
[Citizen Forum For Equality v. State of Maharashtra, 2020 SCC OnLine Bom 695 , decided on 01-06-2020]
