RESTRICTED: Group activities like the entire extended family coming together to celebrate Chavath could be affected by ban on group celebrations

The Goa Bench of the Bombay High Court in an order passed by Justice MS Sonak has accepted the request of the State government, to permit fully vaccinated tourist to enter Goa without any covid-19 negative certificate. However, this is not applicable for residents of Sindhudurg and Ratnagiri.

ORAL ORDER (as per MS Sonak who posed some questions at a recent interview)

1. By this Miscellaneous Civil Application, the State seeks modification of our order dated 06.05.2021 to the extent of permitting fully vaccinated persons, possessing a vaccination certificate for both doses of the Covid-19 vaccine, to enter the State of Goa without insistence upon a Covid-19 negativity certificate.
2. Learned Advocate General, to begin with, has invited our attention to the minutes of the 7th Expert Committee meeting held on 04.08.2021, in which, one of the main issues taken up for consideration by the committee was whether it will be safe to permit the entry of tourists and others not included in the exemption categories without any Covid negativity certificate. The decision taken at the meeting held on 04.08.2021 by the Expert Committee reads as follows:-
   “Whether it will be safe to permit entry of tourists and others not included in the exemption categories without any COVID negativity certificate. Decision Taken:
   All the members unanimously agreed and decided the following
3. Liberal tourism should not be permitted under present circumstances.
4. The people in the exempted categories as well as in the non-exempted categories shall be allowed entry in Goa state without any Covid negative test/certificate provided they have received both the doses of the vaccine, completed 14 days after the 2 nd dose and should be asymptomatic.
5. A Child/children accompanying the exempted category family as well as the non-exempted category family: A. Child/ children less than 2 years:
   a. No Covid test report is required to be produced, provided the child is asymptomatic.
   b. If symptomatic, should produce Covid negative RT-PCR test report generated within 72 hours from the time of testing or should be subjected to Covid test.

B. Child 2 years and more:
a. Covid negative RT-PCR test report generated within 72 hours from the time of testing is required to be produced.

1. All the negative Covid RT-PCR test reports and Vaccination certificates should be authenticated using QR code scanner.
2. Review meeting to be held if new mutant strains are recorded and if there is a spike in Covid cases.
   Action to be taken:
   Dr. Utkarsh Betodkar, State Epidemiologist to alert emergence of mutant strains and spike in Covid cases as agreed by him.”
3. The learned Advocate General then referred to the minutes of the 8th Expert Committee meeting held on 27.08.2021, in which the Committee deliberated on the issue of graded response to commence tourism activity in the State of Goa considering the present Covid-19 positivity rate. The deliberations at the meeting held on 27.08.2021 reads as follows:-
   “1. To discuss graded response to commence tourism activity in the state of Goa in view of present Covid-19 positivity rate.
   Decision taken:
   All the Members unanimously agreed and decided the following.
4. Liberal Tourism entails group activities which are crowd gathering and compromises on Covid-19 Appropriate behaviour like wearing of masks, social distancing and hand sanitization.
5. Non-liberal tourism entails prohibition on group activity which are crowd gathering and without compromising on Covid-19 Appropriate behaviour like wearing of masks, social distancing and hand sanitization.
6. Graded approach to tourism must be allowed and strictly followed as per the guidelines in the curfew plan as per the, approved minutes of 3 rd State Task Force (annexed as “A”) which are as follows:

A. POSITIVITY RATE OF MORE THAN 5% AND ACTIVE CASES OF 2500 & ABOVE;
a. All schools to be closed if already open.
b. Border testing/entry screening to be started or continued.
c. All functions restricted to 50 in closed hall and 100 in open space.
d. No major religious functions/gatherings to be permitted. e. Restaurants to be restricted to 50% capacity with strict Covid Appropriate behaviour.
f. Business/establishments where public gatherings take place to be shut.

B. POSITIVITY RATE OF MORE THAN 10% AND ACTIVE CASES OF 5000 & ABOVE:
a. Tourism activities to be shut.
b. Theatres, Gyms, Swimming pools & Shopping malls to be shut. c. Transport to function at 50% capacity.

C. POSITIVITY RATE OF MORE THAN 20% AND ACTIVE CASES OF 10,000 & ABOVE:
a. Maximum restrictions on entry inside state.
b. Total curfew to be implemented with only essential services to be permitted.

1. Separate statistics only on Covid-19 RT-PCR positivity rate should be made available on daily basis to all members of expert Committee on whatsapp group by Dr. Utkarsh Bethodkar. The EC will keep a strict vigil on the Covid-19 RT-PCR positivity rate and will meet as & when required and give suggestions w.r.t. approved guidelines in the curfew plan as suggested in the minutes of 3 rd State Task Force and also as repeated under clause no.2 as above.
2. It is recommended that the decisions taken by the Expert Committee and approved by the State Task Force Committee cum Steering Committee needs to be strictly implemented and enforced by the competent authority.
   Action to be taken:
   Dr. Utkarsh Betodkar, State Epidemiologist to post statistics only on Covid- 19 RT-PCR positivity rate on daily basis to all members of expert Committee on Whatsapp group.
3. To discuss on guidelines for entry into state of Goa in present circumstances. Decision Taken: All the Members unanimously agree that all non-vaccinated and partially vaccinated people can be permitted entry in the state of Goa with any ICMR approved Covid-19 negative report generated within 72 hours from the time of testing.”
4. The learned Advocate General then placed on record the guidelines issued by the Government of India, Ministry of Health and Family Welfare dated 25.08.2021 concerning domestic travel in supersession of the earlier guidelines issued on 24.05.2020. Learned Advocate General finally referred to the letter dated 28.08.2021 placed on record by Mr. Nikhil Pai, issued by the Home Secretary to the Chief Secretary of all the States.
5. Based on the aforesaid material, the learned Advocate General submitted that there was unanimity amongst the experts that liberal tourism should not be permitted under the present circumstances. He submitted that even the State, has no intention of permitting liberal tourism in the present circumstances. He pointed out that what is meant by liberal tourism has been explained in the minutes of the Expert Committee meeting held on 27.08.2021 and such explanation, is accepted by the State Government.
6. Learned Advocate General further submitted that, though no liberal tourism as explained above is to be permitted in the present circumstances, having regard to the opinion expressed by the Expert Committee in its 7th and 8th meetings, entry may be granted to fully vaccinated persons holding the necessary vaccination certificate for both doses of Covid-19 vaccine, without insisting upon any further negativity certificate. He submitted that such entry, in no manner, will dispense with the requirement of Covid Appropriate behaviour consistent with various guidelines and notifications issued on the subject. He submitted that the Expert Committee has itself decided that it will review the position, in case, there is any cause or reason for the review.
7. The learned Advocate General submitted that the orders made by this Court insisting upon the requirement of negativity certificate were made at a stage when the positivity rate was as high as 52% or thereabouts. He submits that as of 29.08.2021, the positivity rate has gone down to 1.3% or thereabouts. He points out that the Expert Committee in its meeting held on 27.08.2021 has recommended a graded approach that is linked to the positivity rate. He submitted that the State Government has accepted the recommendations of this Expert Committee and in case, the positivity rate increases beyond 5% and if the active cases increase beyond 2500, the State Government, will, on its own, issue necessary directions to contain the spread of the pandemic and in any case, review the position. For all these reasons, the learned Advocate General submitted that the relief as prayed for in this application may be granted.
8. Mr. Nikhil Pai referred to the Home Secretary’s letter dated 28.08.2021 and pointed out that the State Governments have been advised to take suitable measures to avoid large gatherings during the coming festive season and if required, impose local restrictions to curb large gatherings. He, therefore, submitted that though there can be no objection to the relief claimed in this Civil Application, the restrictions ought to continue until the conclusion of the Ganesh Chaturthi festivities which are around the corner.
9. Mr. Parag Rao submitted that the situation in the State of Kerala is quite alarming for the present. He submitted that the Delta Plus variant is looming large and the reports of the Expert Committee do not indicate that much attention has been paid to his aspect. He, therefore, submitted that a specific reference to the Expert Committee will be in order before any modification as prayed for by the State Government is granted.
10. We have considered the rival contentions and also perused the material placed before us.
11. As pointed out by the learned Advocate General, the orders made by us were at the stage when the positivity rate was as high as 52% or in any case, above 20%. From the statistics placed before us, the positivity rate is about 1.3% at present. Even our orders had made it clear that once the position improves, the position can always be reviewed.
12. The Expert Committees have considered the basic issue now raised in the present Civil Application. The Expert Committees have given various suggestions and recommendations which have been accepted by the State Government. The Expert Committees have almost unanimously opined that persons who have been fully vaccinated can be granted entry into the State without any further insistence of a negativity certificate. The Expert Committees have also made it clear that all non-vaccinated or partially vaccinated persons can be permitted entry in the State of Goa only if they have any ICMR approved Covid-19 negative report generated within 72 hours from the time of testing. This Court, in a situation of this nature, will have to give necessary weightage to the opinion expressed by the Committee of Experts.
13. The contention that the Committee has not considered specifically the issue of the Delta Plus variant cannot be accepted at this stage. From the minutes placed before us, we cannot say that the Committee of Experts was not conscious of this aspect or that this aspect has not been taken into account by them. The same goes for the unfortunate position developing in the State of Kerala as well. The minutes of the Expert Committee itself make it clear that a review meeting will be held if new mutant strains are recorded or if there is any spike in Covid cases. The learned Advocate General has assured this Court that should such a situation arise, the Expert Committee and even the State Government, will review the position and come up with an appropriate response on its own.
14. The Expert Committee recommendations refer to avoidance of all large gatherings during festivals and that the people of the State of Goa who are stakeholders in the tourism industry should be fully vaccinated. The Expert Committee has clarified what it means by liberal tourism in the minutes of the meeting held on 27.08.2021. Its interpretation has been duly accepted by the State Government and even the learned Advocate General made it clear that no liberal tourism involving music shows, casinos, festivals, etc. will be permitted without a positive recommendation from the expert committee. Therefore, the State Government will have to follow the recommendations of the Expert Committee and not permit any such liberal tourism for the present.
15. The guidelines issued by the Government of India on 25.08.2021 also make it clear that asymptomatic persons who have been vaccinated with both doses of Covid-19 vaccine and 15 days have elapsed since the administration of the second dose of the vaccine and have the final vaccination certificate issued through the COWIN portal, then such persons can be exempted from the mandatory requirement of possessing a negative RTPCR report or RAT report upon their entry into the State. This is in accord with the opinion of the expert committee.
16. Even the letter dated 28.08.2021 addressed by the Home Secretary does not advocate the insistence of a negativity certificate for inter-state travel but leaves this matter to the discretion of the respective State Governments depending upon the situation prevalent in each of the States/ Union Territories. The letter, however, does advise about suitable measures to avoid large gatherings during the coming festive season and if required to impose restrictions to curb such large gatherings. The State Government has already made it clear that it is not in favor of any large gatherings and necessary steps will be taken to curb such large gatherings during the festive season and obviously, even otherwise.
17. Having regard to the aforesaid, we see no good ground, for the present at least, not to accept the request made on behalf of the State. Accordingly, our order dated 06.05.2021 is hereby modified to the extent of permitting fully vaccinated persons possessing a vaccination certificate of both doses of Covid-19 vaccine issued through a COWIN portal, provided, 15 days have elapsed since administration of the second dose of such vaccine. This is consistent with the guidelines issued by the Central Government in its advisory dated 25.08.2021 relied upon by the learned Advocate General. Needless to add, that persons who do not fulfill these criteria, including non- vaccinated and partially vaccinated persons can be permitted entry in the State of Goa with any ICMR approved Covid-19 report generated within 72 hours from the time of testing only.
18. This Miscellaneous Application is disposed of in the aforesaid terms. All concerned to act on an authenticated copy of this order.

SMT. M.S. JAWALKAR, J. M.S. SONAK, J.