Vaccine Mandate Case: Supreme Court

Vaccine Mandate Case: Supreme Court

Vaccine Mandate Case: Supreme Court

Re: the Legality of Vaccine Mandates

 

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Facts of the Case

  • Dates: May 2, 2022 (decided)
  • Location: India
  • Court: Supreme Court
  • Case #:
  • Petitioner: Dr.Jacaob Puliyel
  • Petitioner’s Lawyer: Prashant Bhushan
  • Respondent: Union & State Governments of Delhi, Madhya Pradesh, Maharashtra & Tamil Nadu
  • Trial Type: Supreme Court
  • Justices: L Nageswara Rao & BR Gavai
  • Status: Decided
  • Verdict: for the Petitioner


*updated May 8, 2022

 

Background

a PIL filed by Dr.Jacaob Puliyel, challenging the vaccine mandates and seeking publication of the clinical trial and adverse events of vaccination. [1]

Dr. Jacob Puliyel, a former member of the National Technical Advisory Group of Immunization had approached the Apex Court assailing the constitutional validity of the vaccine mandates imposed by States, in particular, Delhi, Madhya Pradesh, Maharashtra and Tamil Nadu. He had sought the indulgence of the Court to issue directions to the concerned authorities to disclose the data pertaining to clinical trials of the COVID-19 vaccines administered to adults as well as children in India, as per the requirement of International Medical norms. The petitioner also impelled the Court to revamp the Adverse Events Following Immunization Reporting System which he alleged was opaque, flawed and unknown to the public at large. [1]

Petitioner Jacob Puliyal has said that even though the central government is saying that vaccination is optional, it is not mandatory, but in states like Delhi, Tamil Nadu, Maharashtra and Madhya Pradesh, it has become mandatory.  [2]

lawyer Prashant Bhushan had said that when the central government has said on many occasions, in response to statements and RTI that vaccination is not compulsory but optional, then in many states to open a shop, enter a shop or establishment. Vaccination certificates are sought on occasions such as entry of employees and people working there, walking on the streets, entering an educational institution? The petitioner, in his petition, has also referred to the circulars issued by the Government of National Capital Territory of Delhi on October 8 last year, November 8 in Madhya Pradesh, November 27 in Maharashtra and November 18 in Tamil Nadu and clearly written guidelines in which vaccination should be done. Essential restrictions have been imposed. [2]

At the same time, the Central Government opposed the petition to give the data of the clinical trial of Corona vaccine and not to force the vaccine. In the Supreme Court, the central government had said that such petitions filed for the vested interest of some people can affect the vaccination process. Even an oral comment of the court can be harmful. [2]

The Center told the Supreme Court that till November 24, 2021, one billion 19 crore 38 lakh 44 thousand 741 doses of corona vaccine have been given. Out of these, 2116 cases of adverse event following immunization i.e. AEFI have been registered so far. A report of rapid review and analysis has been completed for 495 (463 Coveshield and 32 Covaxin). Another report of 1356 cases (1236 Covishield, 118 Covaxin and 2 Sputnik) of severe AEFI cases (including 495 cases already analyzed) has been submitted to NEGVAC. [2]

The remaining cases are under rapid review and analysis and will be completed soon. On behalf of the Central Government, Solicitor General Tushar Mehta had said that this petition should not be heard. This may increase hesitation for the vaccine. The country has come out of it with great difficulty. [2]

Justice Nageswara Rao had said that that is why we said that if you have some specific facts, then they should be heard. We also do not want that there should be any problem regarding vaccination. [2]

In fact, on 9 August 2021, the Supreme Court had issued a notice to the Central Government on the petition not to compel people to apply the vaccine and make the trial data public. However, the Supreme Court refused to impose an interim stay on forcing the vaccine to be administered. Justice L Nageswara Rao said that 50 crore people in the country have been vaccinated. The WHO has also said that vaccine hesitancy has done a lot of damage. [2]

Lawyer Prashant Bhushan had said that according to the sero report, 2/3 people have been infected with Covid. In such a situation, the anti body is more effective than the corona vaccine. Now a policy has been made that if the vaccine is not applied then one cannot travel. Many restrictions have been imposed. The government is not making clinical data public. Since the vaccine is voluntary, then if someone does not get the vaccine, then he should not be denied any facility. The petitioner’s lawyer Prashant Bhushan has filed an application asking that the clinical trial of the vaccine as well as the data regarding the adverse effect of the vaccine be made public. [2]

 

India made headlines last year when it refused to offer a liability shield to Pfizer or Moderna, unlike countries such as Canada — which still has a federal vaccine mandate and a ban on the unvaccinated for travel. As such, no contract was signed between India’s authorities and these vaccine manufacturers. Instead, India relied on their own domestically produced vaccines. [3]

Pfizer infamously wanted to hide their COVID trial-related data for seventy-five years but was forced by a court order to release it. As their data dumps are being made publicly available bit by bit, public outrage continues to grow. [3]

 

 

Significance

This case is the first in the Supreme Court to decide on the legality of Vaccine Mandates

 

Plaintiff’s Argument

Vaccine Mandates

The sheet anchor of Advocate, Mr. Prashant Bhushan’s argument against the vaccine mandates was that in the absence of clinical trial data people were restrained from providing informed consent and the same impinged on the right to self-determination protected under Article 21 of the Constitution of India, 1950. Relying on K Puttaswamy v. UOI (2017) 10 SCC 1 and Common Cause v. UOI (2018) 5 SCC1, he emphasised that informed consent is necessary for medical procedures and bodily integrity is an integral part of the right to privacy. The Court was apprised that though the Government of India had indicated that vaccines are to be administered voluntarily, the States have imposed mandated restricting movement, denying essential services and curbing the right to livelihood in derogation of Articles 19 and 21. Mr. Bhushan argued that when there exists scientific evidence to substantiate the claims that nature immunity is better than vaccine-immunity; vaccination does not prevent from getting infected or transmitting; vaccines are ineffective in preventing new variants; vaccines have serious adverse effects; long-effects of the vaccine are unknown, mandating vaccination is unconstitutional. [1]

“For any vaccine to be mandated, the public health rationale underlying such a policy must be based essentially on efficacy and safety of vaccination and prevention of transmission of the disease“, Mr. Bhushan submitted. [1]

He referred to the decision of the UK Parliamentary Committee; judgement of the High Court of New Zealand in Yardley v. Minister for Workplace Relations and Safety [2022] NZHC 291 and orders of Gujarat High Court and Meghalaya High Court sticking down vaccine mandates. [1]

 
Non-Disclosure of data

Mr. Bhushan submitted that the segregated data of clinical trials of vaccines must be disclosed through peer reviewed scientific journals. The disclosure would have a significant impact on determining the adverse effects of the vaccines. The significance of disclosure was asserted by placing reliance on the Nuremberg Code and Report Nos. 59 (2012) and 66 (2013) of the Parliamentary Standing Committee on Health and Family Welfare. [1]

He informed the Court that an RTI Application was filed enquiring whether the Subject Expert Committee had looked at the raw days and/or discussed it. Responding to the same, the Central Drugs Control Standard Organisation stated that the brief of interim clinical trial results along with Subject Expert Committee’s recommendations was publicly available on CDSCO website. Dissatisfied with the response, an appeal was filed and the First Appellate Authority refused to reveal any data stating that the manufacturers had refused to disclose data publicly. [1]

 
Adverse Effect Following Immunization Reporting System

Mr. Bhushan submitted that besides it being an opaque and flawed system, there was a lack of public awareness about the same. [1]

 
Children’s Vaccine Mandate

Citing articles published in scientific journals, Mr. Bhushan argued that the overall risk from COVID-19 for children being remarkably low, it is not reasonable to vaccinate them, that too, without providing an opportunity to the parents to provide informed consent [1]

 
Rebuttal Arguments of the petitioner

Mr. Bhushan contended that the non-disclosure of trial data is preventing independent experts from making their own determinations. He stressed upon the petitioner’s plea that disclosure would permit the independent experts to look into the veracity of the claims of the manufacturers. In this regard, he referred to a United States District Court judgment, wherein the regulatory body was directed to disclose all the information pertaining to the Pfizer vaccine. [1]

He submitted that even considering the Government’s submission on privacy of the patients who participated in the trials, it ought to have made available segregated data. He emphasised that the assertion, vaccines significantly reduce the risk of transmitting the disease, had to be established by the Government by adducing evidence. Mr. Bhushan argued that by merely stating there exists a robust system for granting approval, it cannot be taken outside the ambit of judicial scrutiny. Mr. Bhushan asserted that the information available on the website pertains only to recommendations made by the expert bodies, but does not indicate the material on the basis of which such recommendations were made. [1]

With respect to the adverse reporting system, he pointed out that only the vaccinator can report such effects; the public at large have no knowledge about the reporting system and only known adverse effects can be reported. [1]

 

Defendant’s Argument

Argument from State Government of the Union Government

Solicitor General, Mr. Tushar Mehta at the outset, had questioned the bona fides of the petitioner. He contended that by way of a Public Interest Litigation, the petitioner cannot seek raw data of the clinical trial of the COVID-19 vaccines, merely to satisfy his curiosity, nor can he sit in judgment of the wisdom of domain experts. He refuted the claim of serious adverse effects. According to the official record till 13.03.2022, 1,80,13,23,547 doses had been administered and 77314 people or 0.004% of the vaccinated population had been adversely affected. Refuting the submissions made by Mr. Bhushan, alleging irregularities in the vaccine approval process, he took the Court through the statutory framework and submitted that the same had been adhered to while granting approval. Referring to the Epidemic Diseases Act, 1897 and Disaster Management Act, 2005, he demonstrated the wide ambit of power entrusted upon the Central Government to take measures during a pandemic. [1]

Mr. Mehta vehemently opposed the claim of the petitioner that there was a lack of mechanism for addressing adverse effects from immunization. On the issue of disclosure of clinical trial data, it was asserted that the same was in the teeth of confidentiality provisions. It was highlighted that the Helsinki Declaration and the WHO statement relied upon by the petitioner to seek raw clinical trial data only refers to the obligation to disclose final results, findings and outcomes which have already been disclosed.

Addressing the issue of children’s vaccine mandate, it was argued that evidence provided by the petitioner is based on mRNA vaccine, whereas the vaccine being administered in India was inactivated virus vaccines. It was further pointed out that for pediatric vaccines there is a statutory regime in place, which is being strictly followed. [1]

Mr. Mehta referred to a catena of foreign judgments with respect to vaccination in general, and the vaccination during the COVID-19 pandemic in particular to indicate that individual liberty is not absolute and is subject to other factors, like legitimate aim; and the necessity to achieve that aim.

Moreover he argued that the vaccine mandate is a matter of policy; a matter of scientific adjudication and the scope of judicial review in policy matters, especially when the executive decision is based on expert opinion, is limited. [1]

 

Argument from State Government of Tamil Nadu

Appearing for the State of Tamil Nadu, its Additional Advocate General, Mr. Amit Anand Tiwari submitted that the State Government has exercised power under Tamil Nadu Public Health Act, 1939 and the Disaster Management Act, 2005 to mandate vaccination for accessing public spaces. The mandate was justified, broadly on three grounds : [1]

  1. It prevents mutation

  2. Unvaccinated people causes health risk and

  3. Economic impact.

 

Argument from State Government of Maharashtra

Advocate, Mr. Rahul Chitnis, appearing for the State of Maharashtra, submitted that the Government has mandated vaccination to enter shops, malls etc., and also to avail public transportation, but the same would pass the test of proportionality as expounded by the Apex Court in Modern Dental College And Research Centre And Ors. v. State of Madhya Pradesh. [1]

 
Argument from State Government of Madhya Pradesh

The Counsel adopted the submissions made by the Solicitor General about the need to balance rights. It was also clarified that the Government did not intend to make vaccines mandatory to avail ration. On the contrary, the purpose of the notification was to encourage individuals to get vaccinated. [1]

 
Argument from the Vaccine Manufacturers

Senior Advocate, Mr. Guru Krishnakumar, appearing for Bharat Biotech, controverted Mr. Bhushan’s argument that Phase III Trial of the vaccine has not been published. Moreover, it was emphasised that WHO guidelines referred to by the petitioner do not mandate the disclosure of the primary data and only the analysis of the data. Reliance was placed on Section 8(1)(d) of the Right to Information Act which exempts the disclosure of information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party. The Counsel appearing for SII also opposed the petitioner’s plea for disclosure. [1]

 

Relevant Prior Judgements/ Cases

decision of the UK Parliamentary Committee; judgement of the High Court of New Zealand in Yardley v. Minister for Workplace Relations and Safety [2022] NZHC 291 and orders of Gujarat High Court and Meghalaya High Court sticking down vaccine mandates. [1]

 

Decision

The Supreme Court on Monday held that no individual can be forced to get vaccinated and the right to bodily integrity of a person under Article 21 of the Constitution include the right to refuse vaccinate. [1]

The Court also held that the vaccine mandates imposed by various state governments and other authorities in the context of COVID-19 pandemic are “not proportionate. The Court held so as no substantial data has been produced on record to show that the risk of transmission of COVID-19 virus from the unvaccinated persons are higher than from vaccinated persons. [1]

The Government is entitled to impose restrictions on individual rights in public health interests, but the restrictions should meet the 3-fold requirement legality, need and proportionality laid down by the Supreme Court in the Puttaswamy judgment. [1]

“No data has been provided by the Union of India or States before us controverting the material placed by petitioner which indicates that the risk of tranmission by unvaccinated is at par with vaccinated.In light of this the vaccine mandates cannot be said to be proportionate till the infection rate remains low and new development of research emergence which justifies the mandate”, the Court stated. [1]

Therefore, the Court suggested that all authorities, including private institutions and educational institutions, should review the restrictions on the unvaccinated. The Court however clarified that this direction is confined to the present context of the COVID pandemic situation. It further clarified that it does not extend to any other directions on COVID-19 appropriate behaviour issued by the authorities. [1]

 
Union’s vaccine policy not unreasonable or arbitrary.

The Court also held that the policy of the Union Governemnt on COVID-19 vaccination policy is reasonable. It also held that the clinical trial data of the vaccines have been published in accordance with the relevant norms. The material provided by the Union of India does not support the conclusion that emergency use approval has been granted in haste. [1]

 
Publish reports on Adverse Events

The Court also directed the Union of India to publish reports on Adverse Events Following Immunisation (AEFI) from public and doctors on a publicly accessible system without compromising data of the individuals who are reporting the same. [1]

 
Vaccination for children approved

Regarding vaccine for children, the Court said that it is not possible for us to second guess the opinion of experts and the vaccination indeed follows the global standards and practices. [1]

“On pediatric vaccine, it is in tune with international standards. We direct the Union of India to make sure the key findings of the stages of trial already approved for children be made public at the earliest”, the Court said. [1]

The Court rejected the arguments against the maintainability of the writ petition. Though executive has wide latitude in policy matters, it does not bar the Courts from scrutinizing if the policy is beyond the pale of arbitrariness.

 

Aftermath

…More information is needed…

 


Further Research

Court Documents:
  • Read the Court Ruling
In the news:

On Corona Cases

 

Media


Supreme Court of India rules against vaccine mandates

source: RebelNews


Yohan Tengra: India Supreme Court Stops C19 Vaccine Mandates

source: WorldCouncilForHealth


Supreme Court Upholds Individual’s Right Against Forcible Vaccination

source: NDTV


Pfizer Vaccine Data Analyzed

source: canadiancovidcarealliance.org


12 yr old Vaccine Trial Victim, Maddie

source: shortXXvids


source: …

 

References


 

Keyword

Adverse, Adverse Events Following Immunisation, AEFI, Bharat Biotech, Bhushan, constitution, Delhi, Disaster Management Act, Effects, Epidemic Diseases Act, India, informed consent, Madhya Pradesh, Maharashtra, Mehta, Nuremberg Code, Puliyel, Reporting, Reporting System, Side, Supreme Court, System, Tamil Nadu, Unconstitutional, Vaccine Mandate 


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Mass Testing Case

Mass Testing Case

Mass Testing Case

Re: the Legality of testing Asymptomatic & Healthy people using Molecular tests which cannot evidence Infection

 

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Facts of the Case

  • Dates: Jan 11, 2022
  • Location: Bombay, India
  • Court: High Court
  • Case #: Writ Petition No. WPL/1018/2022
  • Plaintiff: Amber H. Koiri
  • Plaintiff’s Lawyer: Ohja
  • Defendant: State of Maharashtra & Others
  • Trial Type: Writ Petition
  • Judge:
  • Status: Decided
  • Verdict: for the Plaintiff


*This case was edited & reviewed by the Lawyer Dipali Ohja

*updated Feb 25, 2022

Background

The Petitioner has filed a writ on 8 Jan 2022 seeking investigation by premiere investigation agency of India – The Central Bureau of Investigation (CBI) into the decision of Maharashtra Government & Municipal bodies to test asymptomatic and healthy people and thereby causing misappropriation of public funds on massive scale.

The Petitioner is further seeking direction by the Officer of Maharashtra State government to not carry out contact tracing of asymptomatic contacts of a symptomatic case and further direction to the involved authorities to only test symptomatic people. For those with Covid symptoms, an RAT (Rapid Antigen Test) or RT-PCR test should be conducted, but the PCR cycle threshold should be reduced to 24 and no retest with a PCR should be done if someone is negative with the RAT test.

The Petitioner also seeks direction to all private bodies including societies, companies, schools, universities, banks etc. & all government officials/bodies to not mandatorily demand a negative test report from asymptomatic healthy people.    

 

Significance

this Writ Petition challenges the legality of pcr test without which the pandemic could end

 

Plaintiff’s Argument

  • Despite suggestions by experts and directions by the Central Government authorities, the State of Maharashtra is unnecessarily doing Covid-19 testing of asymptomatic & healthy people.
  • The orders passed by the State authorities are arbitrary, unlawful and based on bad faith and ulterior motives.
  • The policies of the State Authority are resulting in profits to private companies who are benefiting from the testing. This in itself represents an offense of misappropriation of public money and property punishable under Sec. 409, 52, 120(B), 34, 109 etc. of IPC.
  • The mandates by the state are unconstitutional, violating fundamental human rights of the citizen and therefore liable be quashed.

Expert Statements / Supporting Evidence

  • The plaintiff has provided a wealth of documentation supporting his argument comprising 85 articles, scientific and other reports, as well as relevant guidelines.

 

Defendant’s Argument

The hearing is yet to commence

 

Relevant Prior Judgements/ Cases

  • Honourable Supreme court in Noida Entrepreneurs Assn. vs. Nodia (2011) 6 SCC 508 has ruled that in such cases the investigation through CBI be ordered.
  • The corruption & frauds of state authorities is already exposed by Shri. Kirit Somaiya of BJP.

 

Decision

The Bombay High Court on Tuesday said the Maharashtra government’s orders of 2021 permitting only people fully vaccinated against COVID-19 to travel in local trains were “illegal” and brazenly affected the fundamental rights of citizens. A division bench of Chief Justice Dipankar Datta and Justice M S Karnik said the three orders signed by the government’s then chief secretary Sitaram Kunte were in clear diversion from the prescribed procedure under the Disaster Management Rules. [4]

“The orders passed by the former chief secretary were in clear diversion of the prescribed procedure. Due to the illegal orders, the fundamental rights of citizens were brazenly affected,” the HC said. [4]

On Tuesday, the government’s counsel, Anil Anturkar, informed the court that the three orders in question (issued on July 15, August 10 and August 11, 2021) stand withdrawn. [4]

“In spirit of the observations made by the high court, the three orders are withdrawn. The state executive committee would be holding a meeting on February 25 following which fresh directives would be issued,” Anturkar said. “We may withdraw the prohibition (on use of local trains by unvaccinated people or those who have taken one dose) or may impose it based on the present COVID-19 situation. At this stage, I cannot say anything further,” Anturkar said. [4]

The bench then pointed out that the number of people who tested positive for coronavirus in Mumbai on Monday (Feb 21, 2022) was at the lowest in 20 months. “We hope and trust that the state executive committee takes an appropriate decision on February 25, keeping in mind the declining trend of COVID-19 cases,” the HC said and posted the matter for further hearing on February 28. [4]

On Monday, Mumbai reported 96 new COVID-19 cases, the lowest single-day rise after April 17, 2020, as per the city civic body. [4]

The HC bench noted that Kunte’s orders breached the state disaster management rules and were issued in his individual capacity as chairperson of the state executive committee without there being any deliberation with the other members. [4]

“The chairperson has the powers to pass such orders only in emergency situations. But, we opine that none of the three orders rendered an emergent situation warranting the former chief secretary to pass such orders,” the high court said. The bench had on Monday asked the government if it was willing to withdraw the three circulars as they were not passed following proper procedure. [4]

 

Aftermath

  • Within two days of filing of this Petition, the Mumbai Municipal Corporation (local municipality) stopped testing at railway stations, beaches, markets and other crowded places. [1]
  • Also, ICMR (Indian Council of Medical Research) issued directions that the contacts of coronavirus patients are not required to undertake a Covid test. The close contacts will only require testing if they are identified as high-risk individuals based on their age or underlying health conditions.[2][3]

 


Further Research

Court Documents:
  • Read the Court Ruling
In the news:
  • …More information is needed…

 

Media



PCR Test Results Explained

source: shortXXvids



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Summary-India-VaxMandateJudgements

Summary-India-VaxMandateJudgements

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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