Summary of Judgements: India

Re: Judgements against Mandatory Vaccination in India

 

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Corona Cases received this summary of 6 recent court Judgements from Lawyer Dipali Ohja upholding the sanctity of bodily autonomy against the vaccine mandates. They ruled that vaccine coercion is illegal and to stop discrimination between vaccinated & un-vaccinated people.

Jan 3, 2022


1. In Re: Dinthar Incident Aizawl Vs. State of Mizoram 2021 SCC OnLineGau 1313,

the Division Bench of Hon’ble Gauhati High Court vide its order dated 02.07.2021, has categorically held as follows:

“14. It has been brought to our notice that even persons who have been vaccinated can still be infected with the covid virus, which would in turn imply that vaccinated persons who are covid positive, can also spread the said virus to others. It is not the case of the State respondents that vaccinated persons cannot be infected with the covid virus or are incapable of spreading the virus. Thus, even a vaccinated infected covid person can be a super spreader. If vaccinated and un-vaccinated persons can be infected by the covid virus and if they can both be spreaders of the virus, the restriction placed only upon the un-vaccinated persons, debarring them from earning their livelihood or leaving their houses to obtain essential items is unjustified, grossly unreasonable and arbitrary.”

2. OsbertKhaling Vs State of Manipur 2021 SCC OnLine Mani 234

The High Court of Manipur at Imphal, vide its Order dated 13.7.2021 in OsbertKhaling Vs State of Manipur 2021 SCC OnLine Mani 234, held that, the State cannot seek to impose conditions upon the citizens so as to compel them to get vaccinated, be it by holding out a threat or by putting them at a disadvantage for failing to get vaccinated. Restraining people who are yet to get vaccinated from opening institutions, organizations, factories, shops, etc., or denying them their livelihood by linking their employment, be it NREGA job card holders or workers in Government or private projects, to their getting vaccinated would be illegal on the part of the State, if not unconstitutional. Such a measure would also trample upon the freedom of the individual to get vaccinated or choose not to do so. A copy of the order dated 13.7.2021 is attached.

3. Madan Mili Vs. UOI 2021 SCC OnLineGau 1503,

The High Court of Guwahati, Itanagar Bench, vide its Order dated 19.07.2021 in Madan Mili Vs. UOI 2021 SCC OnLineGau 1503, held that there was no evidence available either in the record or in the public domain that Covid-19 vaccinated persons cannot be infected with Covid-19 virus, or he/she cannot be a carrier of a Covid-19 virus and consequently, a spreader of Covid-19 virus. In so far as the spread of Covid-19 virus to others is concerned, the Covid-19 vaccinated and unvaccinated person or persons are the same. With regard to the contention of the learned Additional Advocate General that the State Government can make restrictions curtailing the Fundamental Rights of the citizens under the Disaster Management Act, 2005 (hereinafter referred to as the “Act”), by way of the SOP, the same in considered view of the Court is clearly not sustainable, as the said clauses in the SOP which are in issue in the present case cannot be said to be reasonable restrictions made in terms of Article 19(6). The requirement of Article 19(6) of the Constitution is that the restriction has to be made in the form of a law and not by way of an executive instruction. The High Court went on to hold that the action of the State was in violation of right to freely move anywhere as provided under Article 19 and the state action was not reasonable one as required by Article 19. The relevant para reads thus;

“13. In the instant case, the classification sought to be made between the vaccinated and unvaccinated persons for Covid-19 by Clause 11 of the Order dated 30.06.2021 for the purpose of issuing a temporary permit for developmental works in both public and private sector in the State of Arunachal Pradesh is undoubtedly to contain Covid-19 pandemic and its further spread in the State of Arunachal Pradesh. There is no evidence available either in the record or in the public domain that Covid-19 vaccinated persons cannot be infected with Covid-19 virus, or he/she cannot be a carrier of a Covid-19 virus and consequently, a spreader of Covid-19 virus. In so far as the spread of Covid-19 Virus to others is concerned, the Covid-19 vaccinated and unvaccinated person or persons are the same. Both can equally be a potential spreader if they are infected with Covid-19 Virus in them. This aspect of the matter came up for consideration by this Court in WP(C)/37/2020 (In Re Dinthar Incident Aizawl v. State of Mizoram Aizawl; in which case, this Court vide Order dated 02.07.2021, in paragraph 14 thereof, had observed as follows –

  • “14. It has been brought to our notice that even persons who have been vaccinated can still be infected with the covid virus, which would in turn imply that vaccinated persons who are covid positive, can also spread the said virus to others. It is not the case of the State respondents that vaccinated persons cannot be infected with the covid virus or are incapable of spreading the virus. Thus, even a vaccinated infected covid person can be a super-spreader. If vaccinated and un-vaccinated persons can be infected by the covid virus and if they can both be spreaders of the virus, the restriction placed only upon the un-vaccinated persons, debarring them from earning their livelihood or leaving their houses to obtain essential items is unjustified, grossly unreasonable and arbitrary. As such, the submission made by the learned Additional Advocate General that the restrictions made against the un-vaccinated persons vis-à-vis the vaccinated persons is reasonable does not hold any water. As the vaccinated and un-vaccinated persons would have to follow the covid proper behavior protocols as per the SOP, there is no justification for discrimination.”

14. Thus, if the sole object of issuing the Order dated 30.06.2021, by the Chief Secretary cum Chairperson-State Executive Committee, Government of Arunachal Pradesh, vide Memo No. SEOC/DRR&DM/01/2011-12, is for containment of the Covid-19 pandemic and its further spread in the State of Arunachal Pradesh, the classification sought to be made between vaccinated and unvaccinated persons for Covid-19 virus for the purpose of issuing temporary permits for developmental works in both public and private sector, vide Clause 11 thereof, prima facie, appears to be a classification not founded on intelligible differentia nor it is found to have a rational relation/nexus to the object sought to be achieved by such classification, namely, containment and further spread of Covid-19 pandemic.

15. For the reasons stated hereinabove, it prima facie appears to this Court that Clause 11 of the Order dated 30.06.2021, issued by the Chief Secretary cum Chairperson-State Executive Committee, Government of Arunachal Pradesh, vide Memo No. SEOC/DRR&D M/01/2011-12, in so far it makes a classification of persons who are Covid-19 vaccinated and persons who are Covid-19 unvaccinated for the purpose of issuance of temporary permits for developmental works in both public and private sector in the State of Arunachal Pradesh violates Articles 14, 19 (1) (d) & 21 of the Constitution of India calling for an interim order in the case. Accordingly, till the returnable date, Clause 11 of the Order dated 30.06.2021, issued by the Chief Secretary cum Chairperson-State Executive Committee, Government of Arunachal Pradesh, vide Memo No. SEOC/DRR&DM/01/2011-12, in so far it discriminates between Covid-19 vaccinated persons and Covid-19 unvaccinated persons for issuance of temporary permits for developmental works in both public and private sector in the State of Arunachal Pradesh, shall remain stayed.

A copy of the order dated 19.7.2021 is attached hereto.

It is a settled legal position that a person has the fundamental right to choose medication as per his choice.

4. Registrar General, High Court of Meghalaya Vs. State of Meghalaya 2021 SCC OnLineMegh 130,

On 23rd June, 2021 in the case between Registrar General, High Court of Meghalaya Vs. State of Meghalaya 2021 SCC OnLineMegh 130, it is ruled by High Court as under;

“It has been brought to the notice of this High Court that the State of Meghalaya, through various orders of the Deputy Commissioners, has made it mandatory for shopkeepers, vendors, local taxi drivers and others to get themselves vaccinated before they can resume their businesses. Whether vaccination can at all be made mandatory and whether such mandatory action can adversely affect the right of a citizen to earn his/her livelihood, is an issue which requires consideration.

Thus, by use of force or through deception if an unwilling capable adult is made to have the flu vaccine would be considered both a crime and tort or civil‟ wrong, as was ruled in Airedale NHS Trust v Bland reported at 1993 AC  789 = (1993) 2 WLR 316 = (1993) 1 All ER 821, around thirty years (30) ago. Thus, coercive element of vaccination has, since the early phases of the initiation of vaccination as a preventive measure against several diseases, have been time and again not only discouraged but also consistently ruled against by the Courts for over more than a century.

Till now, there has been no legal mandate whatsoever with regard to coercive or mandatory vaccination in general and the Covid19 vaccination drive in particular that can prohibit or take away the livelihood of a citizen on that ground.

In the “frequently asked questions” (FAQs) on COVID-19 vaccine prepared and uploaded by the Ministry of Health and Family Welfare, Government of India, in its official website, the question which appears under serial number 3 reads, “Is it mandatory to take the vaccine?” The “potential response”, which is provided in the official website reads, “Vaccination for COVID-19 is voluntary.

In this context, around one hundred and seven (107) years ago, in Schloendroff v Society of New York Hospitals reported at (1914) 211 NY 125 = 105 NE 92; 1914 NY Justice Cardozo ruled that „every human being of adult years and sound mind has a right to determine what shall be done with their body‟.

 This finds mention in decisions of the European Commission and Court of Human Rights [X vs. Netherlands of 1978 (decision rendered on 4th December, 1978); X vs. Austria of 1979 (decision rendered on 13th December, 1979)] which has become truer in the present times across the world than ever before. Compulsorily administration of a vaccine without hampering one‟s right to life and liberty based on informed choice and informed consent is one thing. However, if any compulsory vaccination drive is coercive by its very nature and spirit, it assumes a different proportion and character. However, vaccination by force or being made mandatory by adopting coercive methods, vitiates the very fundamental purpose of the welfare attached to it.

5. Common Cause Vs. Union of India (2018) 5 SCC 1 ,

In Common Cause Vs. Union of India (2018) 5 SCC 1, it is ruled as under;

169. In the context of health and medical care decisions, a person’s exercise of self-determination and autonomy involves the exercise of his right to decide whether and to what extent he/she is willing to submit himself/herself to medical procedures and treatments, choosing amongst the available alternative treatments or, for that matter, opting for no treatment at all which, as per his or her own understanding, is in consonance with his or her own individual aspirations and values.

Q. Conclusions in seriatim

202. In view of the aforesaid analysis, we record our conclusions in seriatim:

  • 202.8. An inquiry into Common Law jurisdictions reveals that all adults with capacity to consent have the right of self-determination and autonomy. The said rights pave the way for the right to refuse medical treatment which has acclaimed universal recognition. A competent person who has come of age has the right to refuse specific treatment or all treatment or opt for an alternative treatment, even if such decision entails a risk of death. The “Emergency Principle” or the “Principle of Necessity” has to be given effect to only when it is not practicable to obtain the patient’s consent for treatment and his/her life is in danger. But where a patient has already made a valid Advance Directive which is free from reasonable doubt and specifying that he/she does not wish to be treated, then such directive has to be given effect to.
  • 202.9.Right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity. With the passage of time, this Court has expanded the spectrum of Article 21 to include within it the right to live with dignity as component of right to life and liberty.
  • 202.12. Though the sanctity of life has to be kept on the high pedestal yet in cases of terminally ill persons or PVS patients where there is no hope for revival, priority shall be given to the Advance Directive and the right of self-determination.
  • 202.13. In the absence of Advance Directive, the procedure provided for the said category hereinbefore shall be applicable.202.14. When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest.

306. In addition to personal autonomy, other facets of human dignity, namely, “self-expression” and “right to determine” also support the argument that it is the choice of the patient to receive or not to receive treatment.

517.The entitlement of each individual to a dignified existence necessitates constitutional recognition of the principle that an individual possessed of a free and competent mental state is entitled to decide whether or not to accept medical treatment. The right of such an individual to refuse medical treatment is unconditional. Neither the law nor the Constitution compel an individual who is competent and able to take decisions, to disclose the reasons for refusing medical treatment nor is such a refusal subject to the supervisory control of an outside entity.

6. Captain Vikrant Sansare V. State of Maharashtra and Others,

In Captain Vikrant Sansare V. State of Maharashtra and Others it is ruled as under (IVERMECTIN JUDGMENT) :

“4. A reply affidavit has been filed on behalf of the State Government of Dr. Sadhana M. Tayde, Director in the office of the Commissioner of Health Services, Mumbai to oppose the prayers as made in the petition. Referring to the order dated 20th May 2021, it is stated that the deponent could not give complete instructions to the Government Pleader and only recommendation letter by ICMR was given to the Court, and therefore, the Court had made observations to adjourn the proceedings to enable the State to issue appropriate advisory/circular in connection with the Tablet Ivermectin. In para 4 of the affidavit, it is stated that the Government of Maharashtra, through its Public Health Department has issued protocol for treatment of confirmed Covid-19 patients in home isolation and hospitalized patients on 8th April 2021. The said protocol has already prescribed the usage of tablet Ivermectin as a treatment method. Copy of the said circular is placed on record at page 143. It is thus submitted that since the usage of tablet Ivermectin is prescribed by the State Government, the medical fraternity is already using the same and no new advisory needs to be issued.


 

Keywords

Airedale NHS Trust v Bland, Aizawl, Arunachal Pradesh, Autonomy, Captain Vikrant Sansare, Cardozo, Common Cause, Common Law, Dignity, Dipali, Disaster Management Act, Emergency Principle, Guwahati, Imphal, India, Itanagar Bench, Ivermectin, Judgements, Lawyer, Madan Mili, Maharashtra, mandates, Manipur, Meghalaya, Mizoram, Ohja, OsbertKhaling, Principle of Necessity, Sadhana, Schloendroff v Society of New York Hospitals, Self-Determination, Summary, Super Spreader, Tayde, Union of India, UOI, Vaccine


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