Saturday, May 21, 2022



Against executive tyranny draped in disciplinary power, says SC on mandatory Covid vax

New Delhi, May 2, 2022- The Supreme Court on Monday said the courts must act to defend citizens in the assertion of their fundamental rights against “executive tyranny draped in disciplinary power”, as it declared that no individual can be forced to get Covid-19 vaccine as bodily integrity and personal autonomy are recognised under the Constitution’s Article 21.

A bench of Justices L. Nageswara Rao and B.R. Gavai said: “It is true that to be vaccinated or not is entirely the choice of the individual. Nobody can be forcefully vaccinated as it would result in bodily intrusion and violation of the individual’s right to privacy, protected under Article 21 of the Constitution.”

It added that personal autonomy of an individual involves the right of an individual to determine how they should live their own life, which consequently encompasses the right to refuse to undergo any medical treatment in the sphere of individual health.

“Persons who are keen to not be vaccinated on account of personal beliefs or preferences, can avoid vaccination, without anyone physically compelling them to be vaccinated,” it added.

The bench said it is satisfied that the current vaccination policy of the government is informed by relevant considerations and cannot be said to be unreasonable or manifestly arbitrary.

As a state government had argued that there is limited scope of judicial review in matters of policy framed on the basis of expert opinion, the bench noted that it is neither within the domain of the courts nor the scope of judicial review to embark upon an inquiry as to whether a particular public policy is wise or whether better public policy can be evolved.

Justice Rao, who authored the judgment on behalf of the bench, said the scope of judicial review when examining a policy of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary.

“However, the court certainly is the constitutional invigilator and must act to defend the citizen in the assertion of his fundamental rights against executive tyranny draped in disciplinary power,” said the bench, in its 115-page judgment.

The top court verdict came on a plea, which advocate Prashant Bhushan argued on behalf of Dr Jacob Puliyel, a former member of the National Technical Advisory Group on Immunisation. The plea had challenged vaccine mandates issued by various state governments, raised apprehension on children vaccination, and raised non-disclosure of segregated clinical trial data in public domain as well, improper collecting and reporting of adverse effects of Covid vaccines.

Bhushan contended that there is sufficient evidence to the effect that natural immunity acquired from a Covid-19 infection is long-lasting and robust in comparison to vaccine immunity. He added studies also indicate that vaccines do not prevent infection from the virus or transmission amongst people and vaccines are also ineffective in preventing infection from new variants.

The bench noted that neither the Centre nor the state governments have produced any material before it to justify the discriminatory treatment of unvaccinated individuals in public places by imposition of vaccine mandates.

“We are of the opinion that the restrictions on unvaccinated individuals imposed through vaccine mandates cannot be considered to be proportionate, especially since both vaccinated and unvaccinated individuals presently appear to be susceptible to transmission of the virus at similar levels,” it said.

The bench added that vaccine mandates should be avoided till the infection rate remains low and any new development or research finding emerges which provides due justification to impose reasonable and proportionate restrictions on the rights of unvaccinated individuals.

“We suggest that all authorities in this country, including private organisations and educational institutions, review the relevant orders and instructions imposing restrictions on unvaccinated individuals in terms of access to public places, services and resources, if not already recalled,” said the bench.

The top court, however, declined to accept the petitioner’s contention that restricted emergency use approvals granted to Covishield and Covaxin were done in haste, without thorough review of the relevant data.

It clarified that all relevant data required to be published under the extant statutory regime must be made available to the public without undue delay, subject to protection of privacy of individuals.

The bench – while approving the decision to vaccinate children – said: “We direct the Union of India to ensure that key findings and results of the relevant phases of clinical trials of vaccines already approved by the regulatory authorities for administration to children, be made public at the earliest, if not already done.”  (Agency)

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