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Don’t hide behind fig leaf of financial constraints: Telangana HC to state gov't

The court’s order fell short of completely reprimanding the government for submitting an inadequate affidavit and effectively asked the government to not be complacent and to continue testing

Sabrangindia 29 May 2020

Covid 19Image Courtesy:edexlive.com

The Telangana High Court, during a combined hearing of 5 petitions alleging inadequate testing by the state government, observed that the government cannot put the health of the people at stake.

The five petitions have been filed by retired Osmania University professor P.L. Vishveshwar Rao and Dr Cheruku Sudhakar, Varun Sankineni, Dr K.P. Rajender, retired district medical and health officer, Gadwal, and advocate Naresh Reddy Chinnola.

The bench comprising Chief Justice Raghvendra Singh Chauhan and Justice B Vijyasen Reddy referred to media reports alleging that Telangana was under reporting cases and was a state with very low testing. The Bench, while asking for a significant amount of data from the government, finding its counter affidavit inadequate, also asked the government to not indulge in “self congratulation” yet and continue testing as far it was financially feasible.

Pointing out the fallacies of the government in its affidavit, the court observed, “While the State claims that it envisages the hospitalization of 12,000 persons, it equally, claims that there are only 3537 beds which are classified as 'proposed oxygen beds which are expected to be ready by June 04, 2020'. Thus, obviously, the State plans to have four adults on every bed. To say the least, if this is the level of 'preparedness' of the State, it is a frightening scenario for the people of the State.”

While dealing with the issue of testing of dead bodies for COVID, the court referred to the ICMR guidelines dated May 18, which prescribed “asymptomatic direct and high-risk contacts of a confirmed case to be tested once between five days and ten days of coming into contact i.e. coming into contact of a confirmed case. Moreover, all asymptomatic ILI among returnees and migrants within seven days of illness must be tested”. The court observed that, the state’s Director of Public Health and Family Welfare issued a letter directing that “samples from the dead bodies should not be collected” which “flies in the face of the guidelines issued by ICMR”.

Emphasizing the need of testing a dead body for COVID, the court stated, “If the dead bodies are not tested, a grave possibility does exist that an asymptomatic person may die due to other medical reasons, such as cardiac arrest. And yet, the dead body may continue to carry the coronavirus within itself. If the dead body of such a person were to be handed over to the family, without taking a sample and testing it for presence of the virus, a distinct possibility does exist that the family members may become infected with coronavirus. Hence, it is imperative that every dead body, being released from the hospitals, necessarily has to be tested in order to eliminate the possibility that the dead body, even of an asymptomatic person, is not a carrier of coronavirus.”

The court found many flaws in the affidavit submitted by the government such as it being silent on total number of migrants screened at borders, period of quarantine for asymptomatic patients and so on. The court found the affidavit to be inadequate and lacking important information and found a lot of data to be conspicuously missing.

The court directed, “The dead bodies being released from the hospitals should be tested to see whether those dead bodies are carriers of coronavirus or not”.

The court also directed the government with regards to testing stating, “The Government is directed to carry out 'random testing' and 'community testing' in the districts declared as 'Red Zone', 'Orange Zone' and 'containment area'. Having carried out such tests, the Government is directed to inform this Court about the number and the place where such tests were carried out”. Further the government was also directed to “submit a complete report with regard to the number of persons tested from May 01 , 2O2O till May 25, 2020 including the asymptomatic direct and high-risk contacts of a confirmed case”.

Further the court asked for the following data from the state government:

·         number of those persons, who are, or were, in contact with a confirmed case whether such persons were tested once between filth day and tenth day of coming into contact as prescribed by guidelines dated 18.05.2020 of ICMR

·         number of migrant workers, who have entered the State so far, and whether they have been tested while entering the State or not

·         testing mechanism, or methods being used at the railway stations where the trains are bringing the migrant workers from all across the country

·         number of migrant workers found to be ‘positive’

·         number of migrant workers who have been quarantined, both institutionally, or at home, and whether those who are being quarantined at home are being placed under medical surveillance or not

·         if the families of these migrant workers, and the neighbours of these migrant workers, found to be positive, are also being medically examined or not

·         the classification of the Districts into three zones, the basis of the classification and also as to how many zones have changed their colours from "Red" to "Orange", and from "Orange" to "Green”

·         data avaiiable for changing the category of a District from "Red" to "Orange", or from "Orange" to "Green".

The Court observed that even if India has performed exceedingly well in containing the spread as well as the number of deaths, “we cannot afford the luxury of resting on our oars”.

Pointing towards the possibly inadequate testing in the state, the court said, “self-congratulating ourselves, at this juncture, may be too early in the day. Moreover, to ignore the presence of coronavirus by not testing large number of population is inviting the Trojan Horse into our citadel.”

The Court asked the state government to test and continue to test as far as practical and financially feasible and said that it expects the government to rise to the occasion.

The case is to be next heard on June 4.

The complete order may be read here.

Related:

COVID-19 and the Indian Supreme Court
Bar and bench are conscience of the court: Lawyers write to SC on migrant crisis
ICMR removes Covid-19 price cap, asks states to negotiate with private labs to lower price

Don’t hide behind fig leaf of financial constraints: Telangana HC to state gov't

The court’s order fell short of completely reprimanding the government for submitting an inadequate affidavit and effectively asked the government to not be complacent and to continue testing

Covid 19Image Courtesy:edexlive.com

The Telangana High Court, during a combined hearing of 5 petitions alleging inadequate testing by the state government, observed that the government cannot put the health of the people at stake.

The five petitions have been filed by retired Osmania University professor P.L. Vishveshwar Rao and Dr Cheruku Sudhakar, Varun Sankineni, Dr K.P. Rajender, retired district medical and health officer, Gadwal, and advocate Naresh Reddy Chinnola.

The bench comprising Chief Justice Raghvendra Singh Chauhan and Justice B Vijyasen Reddy referred to media reports alleging that Telangana was under reporting cases and was a state with very low testing. The Bench, while asking for a significant amount of data from the government, finding its counter affidavit inadequate, also asked the government to not indulge in “self congratulation” yet and continue testing as far it was financially feasible.

Pointing out the fallacies of the government in its affidavit, the court observed, “While the State claims that it envisages the hospitalization of 12,000 persons, it equally, claims that there are only 3537 beds which are classified as 'proposed oxygen beds which are expected to be ready by June 04, 2020'. Thus, obviously, the State plans to have four adults on every bed. To say the least, if this is the level of 'preparedness' of the State, it is a frightening scenario for the people of the State.”

While dealing with the issue of testing of dead bodies for COVID, the court referred to the ICMR guidelines dated May 18, which prescribed “asymptomatic direct and high-risk contacts of a confirmed case to be tested once between five days and ten days of coming into contact i.e. coming into contact of a confirmed case. Moreover, all asymptomatic ILI among returnees and migrants within seven days of illness must be tested”. The court observed that, the state’s Director of Public Health and Family Welfare issued a letter directing that “samples from the dead bodies should not be collected” which “flies in the face of the guidelines issued by ICMR”.

Emphasizing the need of testing a dead body for COVID, the court stated, “If the dead bodies are not tested, a grave possibility does exist that an asymptomatic person may die due to other medical reasons, such as cardiac arrest. And yet, the dead body may continue to carry the coronavirus within itself. If the dead body of such a person were to be handed over to the family, without taking a sample and testing it for presence of the virus, a distinct possibility does exist that the family members may become infected with coronavirus. Hence, it is imperative that every dead body, being released from the hospitals, necessarily has to be tested in order to eliminate the possibility that the dead body, even of an asymptomatic person, is not a carrier of coronavirus.”

The court found many flaws in the affidavit submitted by the government such as it being silent on total number of migrants screened at borders, period of quarantine for asymptomatic patients and so on. The court found the affidavit to be inadequate and lacking important information and found a lot of data to be conspicuously missing.

The court directed, “The dead bodies being released from the hospitals should be tested to see whether those dead bodies are carriers of coronavirus or not”.

The court also directed the government with regards to testing stating, “The Government is directed to carry out 'random testing' and 'community testing' in the districts declared as 'Red Zone', 'Orange Zone' and 'containment area'. Having carried out such tests, the Government is directed to inform this Court about the number and the place where such tests were carried out”. Further the government was also directed to “submit a complete report with regard to the number of persons tested from May 01 , 2O2O till May 25, 2020 including the asymptomatic direct and high-risk contacts of a confirmed case”.

Further the court asked for the following data from the state government:

·         number of those persons, who are, or were, in contact with a confirmed case whether such persons were tested once between filth day and tenth day of coming into contact as prescribed by guidelines dated 18.05.2020 of ICMR

·         number of migrant workers, who have entered the State so far, and whether they have been tested while entering the State or not

·         testing mechanism, or methods being used at the railway stations where the trains are bringing the migrant workers from all across the country

·         number of migrant workers found to be ‘positive’

·         number of migrant workers who have been quarantined, both institutionally, or at home, and whether those who are being quarantined at home are being placed under medical surveillance or not

·         if the families of these migrant workers, and the neighbours of these migrant workers, found to be positive, are also being medically examined or not

·         the classification of the Districts into three zones, the basis of the classification and also as to how many zones have changed their colours from "Red" to "Orange", and from "Orange" to "Green”

·         data avaiiable for changing the category of a District from "Red" to "Orange", or from "Orange" to "Green".

The Court observed that even if India has performed exceedingly well in containing the spread as well as the number of deaths, “we cannot afford the luxury of resting on our oars”.

Pointing towards the possibly inadequate testing in the state, the court said, “self-congratulating ourselves, at this juncture, may be too early in the day. Moreover, to ignore the presence of coronavirus by not testing large number of population is inviting the Trojan Horse into our citadel.”

The Court asked the state government to test and continue to test as far as practical and financially feasible and said that it expects the government to rise to the occasion.

The case is to be next heard on June 4.

The complete order may be read here.

Related:

COVID-19 and the Indian Supreme Court
Bar and bench are conscience of the court: Lawyers write to SC on migrant crisis
ICMR removes Covid-19 price cap, asks states to negotiate with private labs to lower price

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