Kerala High Court
Sanil Narayanan vs The State Of Kerala on 20 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA,
1943
WP(C) NO. 21120 OF 2021
PETITIONERS:
1 SANIL NARAYANAN, AGED 48 YEARS, S/O.NARAYANAN
NAMBOOTHIRI, RESIDING AT PERIYAMANA PUTHAN
MADHOM, KAIPPUZHA, KULANADA (PO),
PATHANAMTHITTA DISTRICT, PIN-689 503.
2 DR.V.ABDUL JALEEL, AGED 49 YEARS,
S/O.V.KUNHAHAMAD, RESIDING AT VALAN HOUSE,
PAITHINIPARAMBU, DOWNHILL (PO), MALAPPURAM
DISTRICT, PIN-676 519.
3 K.SANTHA KUMARI, AGED 49 YEARS, RESIDING AT
PALAZHI HOUSE, CHALA 2ND CROSS ROAD, VIDYANAGAR,
KASARGODE DISTRICT, PIN-671 123.
4 ABDUL LATHEEF.P., AGED 44 YEARS, S/O.ABDUL
KHADER HAJI, RESIDING AT PARAMBAYIL HOUSE,
KAKKATTUPARA, THOZHUVANUR (PO), VALANCHERY,
MALAPPURAM DISTRICT, PIN-676 552.
5 MUHAMMED ASHRAF, AGED 53 YEARS, S/O.MAHAMOOD,
RESIDING AT CHALLAKKARA HOUSE, (CRYSTAL VILLA),
KALIKKAL ROAD, PAYANGADI (RS)(PO), KANNUR
DISTRICT, PIN-670 358.
6 C.P.ABDUL WAHAB, AGED 50 YEARS, S/O.MOHAMMED
KUTTY, RESIDING AT CHOLAYIL PARAMBIL HOUSE,
RANDATHANI, RANDATHANI (PO), MALAPPURAM
DISTRICT, PIN-676 510.
7 RASIYA,
AGED 42 YEARS, D/O.ABDUL KAREEM, RESIDING AT
PARAPPAN HOUSE, KALLIDUMBU, EDAVANNA POST,
MALAPPURAM DISTRICT, PIN-676 541.
W.P.(C) Nos.21120 & 21463 of 2021 2
BY ADVS.
R.O.MUHAMED SHEMEEM
NASEEHA BEEGUM P.S.
RESPONDENT/S:
1 THE STATE OF KERALA, REPRESENTED BY THE CHIEF
SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
2 THE CHAIRMAN,
STATE EXECUTIVE COMMITTEE, KERALA STATE DISASTER
MANAGEMENT AUTHORITY, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
3 THE PRINCIPAL SECRETARY,
EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
4 THE SECRETARY, DEPARTMENT OF HEALTH AND FAMILY
WELFARE, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
5 THE SECRETARY,
DEPARTMENT OF AYUSH, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
6 THE DIRECTOR OF GENERAL EDUCATION,
DIRECTORATE OF GENERAL EDUCATION, JAGATHI,
THIRUVANANTHAPURAM, PIN-695 014.
7 UNION OF INDIA,
REPRESENTED BY THE SECRETARY, MINISTRY OF AYUSH,
AYUSH BHAVAN, B BLOCK, GPO COMPLEX, INA, NEW
DELHI, PIN-110 023.
ASG.P.VIJAYAKUMAR
SRI.V.MANU SPL GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.10.2021, ALONG WITH WP(C).21463/2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.21120 & 21463 of 2021 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 20TH DAY OF OCTOBER 2021 / 28TH ASWINA,
1943
WP(C) NO. 21463 OF 2021
PETITIONER/S:
1 RIDHA FATHIMA
AGED 19 YEARS
D/O. MUJEEB RAHMAN, RESIDING AT
KANICHATHVALAPPIL HOUSE, POST KOKKUR,
MALAPPURAM DISTRICT, PIN-679 591.
2 ABHISHEK V.S.
AGED 19 YEARS
S/O. SANIL KUMAR, RESIDING AT VALIYAVEETTIL
THEKKETHIL, MANALVAYAL (PO), PULPALLY, (VIA),
IRULAM, WAYANAD DISTRICT, PIN-673 579.
3 NAJA JAHAN V.
AGED 21 YEARS
D/O. V.ABDUL JALEEL, RESIDING AT VALAN HOUSE,
PAITHINIPARAMBU, DOWN HILL, MALAPPURAM,
MALAPPURAM DISTRICT, PIN-676 519.
4 NAJDA ANWAR T.
AGED 19 YEARS
D/O ANVARTHOTTATHIL, RESIDING AT THOTTATHIL
HOUSE, CHELARI, THENHIPALAM POST, MALAPPURAM
DISTRICT, PIN-673 636.
5 SHIRIN SHAHANA B.V.
AGED 22 YEARS, D/O. MOHAMMED ASHRAF C., RESIDING
AT CRYSTAL VILLA, KALIKKAL ROAD, PAYANGADI (RS)
POST, KANNUR DISTRICT, PIN-670 358.
W.P.(C) Nos.21120 & 21463 of 2021 4
6 FATHIMATHU ZAHRA V.M.
AGED 19 YEARS, D/O. MUHAMMED ASHARAF VK,
RESIDING AT VADAVANAKUDY HOUSE, PONJASSERY (PO),
ERNAKULAM DISTRICT, PIN-683 547.
7 NAJIHA
AGED 19 YEARS, S/O. ABOOBACKER, RESIDING AT
KOORITHODI HOUSE, KURUVAMBALAM (PO), MALAPPURAM
DISTRICT, PIN-679 338.
8 ARYA CHANDRAN
AGED 18 YEARS
D/O. CHANDRAN, K.S. RESIDING AT KEEZHETHUPARAYIL
HOUSE, KEERAMPARA, KEERAMPARA POST, PUNNEKKADU,
ERNAKULAM DISTRICT, PIN-686 681
BY ADVS.
R.O.MUHAMED SHEMEEM
NASEEHA BEEGUM P.S.
RESPONDENT/S:
1 THE DIRECTOR,
DIRECTORATE OF COLLEGIATE EDUCATION 6TH FLOOR,
VIKAS BHAVAN, PALAYAM, THIRUVANANTHAPURAM, PIN-
695 033.
2 THE CHAIRMAN
STATE EXECUTIVE COMMITTEE, KERALA STATE DISASTER
MANAGEMENT AUTHORITY, GOVERNMENT STATE
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.
3 THE PRINCIPAL SECRETARY
HIGHER EDUCATION DEPARTMENT, GOVERNMENT STATE
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.
4 THE SECRETARY
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
GOVERNMENT STATE SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
W.P.(C) Nos.21120 & 21463 of 2021 5
5 THE SECRETARY
DEPARTMENT OF AYUSH, GOVERNMENT STATE
SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.
6 THE STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO
GOVERNMENT, GOVERNMENT STATE SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
7 UNION OF INDIA REPRESENTED BY THE SECRETARY,
MINISTRY OF AYUSH, AYUSH BHAVAN, B-BLOCK, GPO
COMPLEX, INA, NEW DELHI, PIN-110 023.
ASG.P.VIJAYAKUMAR
SRI.V.MANU SPL GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.10.2021, ALONG WITH WP(C).21120/2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) Nos.21120 & 21463 of 2021 6
P.B.SURESH KUMAR, J.
----------------------------------------------
W.P.(C) Nos.21120 and 21463 of 2021
-----------------------------------------------
Dated this the 20th day of October, 2021
JUDGMENT
The questions involved in these writ petitions are
identical and they are, therefore, disposed of by this common
judgment. Parties and documents are referred to in this
judgment, unless otherwise mentioned, as they appear in W.P.
(C) No.21463 of 2021.
2. On 17.09.2021, the Government in the Higher
Education Department, having regard to the fact that the
restrictions imposed in connection with the prevention of
Covid-19 pandemic have been substantially relaxed, ordered to
open the higher education institutions including professional
colleges in the State with effect from 04.10.2021 for the final
W.P.(C) Nos.21120 & 21463 of 2021 7
year graduate students and post graduate students subject to
the conditions stipulated therein. In the light of the said
Government Order, the Director of Collegiate Education, the
first respondent, issued Ext.P1 circular on 01.10.2021 directing
that students, teachers and other staff members who have
taken two doses of Covid-19 vaccine or one dose of the vaccine
before two weeks and those who have recovered from Covid-19
infection within the previous 90 days, shall be permitted to
enter the educational institutions and their hostels. It is
clarified, however, in Ext.P1 circular that those who are unable
to take the vaccine on account of the health issues can also
enter the educational institutions and their hostels on
production of medical certificates, indicating their inability to
take the vaccine.
3. On 02.10.2021, the second respondent, the
Chairman of the Executive Committee of the State Disaster
Management Authority issued Ext.P2 order in exercise of the
powers under Section 20(3) of the Disaster Management Act,
W.P.(C) Nos.21120 & 21463 of 2021 8
2005 directing, among others, that regular classes in colleges
and training institutions can be commenced with effect from
18.10.2021 for students who have taken two doses of the
vaccine by engaging teachers/trainers/other staff who have
taken two doses of the vaccine.
4. The petitioners are students undergoing
education in various colleges in the State. They have taken an
informed decision not to take the vaccine fearing adverse side
effects. It is stated by the petitioners that the vaccine is not
compulsory and the right to life guaranteed to them under
Article 21 of the Constitution of India, especially the right to
privacy available to the petitioners also gives them freedom to
abstain from taking the vaccine. In the circumstances,
according to the petitioners, Ext.P1 circular of the first
respondent and Ext.P2 order of the second respondent are
illegal and unconstitutional. The petitioners, therefore, seek
orders quashing Ext.P1 circular and Ext.P2 order to the extent
they restrict the students from continuing their education in the
W.P.(C) Nos.21120 & 21463 of 2021 9
colleges, when the colleges reopen.
5. W.P.(C) No.21120 of 2021 is a writ petition
instituted by a few school teachers in the State challenging a
circular issued by the Director of General Education, the sixth
respondent in the said writ petition, identical to Ext.P1 circular,
insisting the teachers and other staff members of the schools in
the State to take two doses or at least one dose of the vaccine
on or before 16.09.2021. The grounds urged by the petitioners
in this writ petition are identical to the grounds urged by the
petitioners in W.P.(C) No.21463 of 2021. In addition, the
petitioners in this case also allege that the said circular of the
sixth respondent infringes the fundamental right guaranteed to
the petitioners under Article 19(1)(g) of the Constitution.
6. Heard the learned counsel for the petitioners
as also the learned Government Pleader.
7. The learned counsel for the petitioners
reiterated the case in the writ petitions and relied on the
decisions of the Apex Court in K.S. Puttaswamy v. Union of
W.P.(C) Nos.21120 & 21463 of 2021 10
India, (2017) 10 SCC 1 and Aruna Ramachandra Shanbaug
v. Union of India, (2011) 4 SCC 454, in support of the same.
8. Per contra, the learned Government Pleader
contended at the outset that the questions raised by the
petitioners in the writ petitions are covered against them by
the decision of the Division Bench of this Court in W.P.(C)
Nos.16614 of 2021 and 17274 of 2021. As regards the merits of
the matter, it was argued by the learned Government Pleader
that no fundamental right is absolute and in the interest of
general public, reasonable restrictions can be imposed by the
Government. According to the learned Government Pleader,
the measures taken in terms of the impugned order and
circulars are only those taken in public interest to suppress the
spread of Covid-19. It was also argued by the learned
Government Pleader that the rights of individuals are always
subservient to public interest and the directions contained in
the impugned order and circulars being directions issued in
public interest, they cannot be impugned on the ground of
W.P.(C) Nos.21120 & 21463 of 2021 11
violation of fundamental rights of the individuals.
9. I have considered the arguments of the learned
counsel for the parties on either side.
10. The decision of the Division Bench of this Court
cited by the learned Government Pleader is a decision on two
writ petitions instituted challenging, among others, the
decisions of the competent authorities permitting entry in
public places for those who have taken the vaccine. The case of
the petitioners in the said writ petitions was that the impugned
decisions are discriminatory and that persons who are
vaccinated and unvaccinated are to be treated alike. Prayers
(i), (ii) and (vii) in W.P.(C) No.16614 of 2021 read thus :
"(i) Issue a writ of mandamus or any appropriate writ or
direction or an order to the State of Kerala, Represented
by Secretary, Health & Family Welfare Department,
Secretariat, Thiruvananthapuram, (respondent No.2),
and/or other appropriate authorities, to amend the
guidelines issued by the 2 nd
respondent dated 4.8.2021 in
G.O.(Rt.) No. 567/2021/DMD, inter alia, removing the
following paragraphs:
(4) a person (workers/visitor) can enter shops,
markets, banks, public and private offices,
W.P.(C) Nos.21120 & 21463 of 2021 12
financial institutions, industries, factories, open
tourist places, and all other institutions only if
he/she is vaccinated with the first dose of Covid
vaccine at least two weeks before or shall have
an RTPCR negative certificate taken within 72
hours or he/she has been recovered from Covid
19 illness a month before."
(ii) To issue a writ of mandamus or any appropriate writ or
direction or order to the respondents and/or other relevant
authorities not to discriminate citizens between
vaccinated and not vaccinated as Government cannot
compel a citizen to get vaccinated, in violation of the
fundamental rights guaranteed under the Constitution.
(vii) Issue a writ of certiorari or such other appropriate
writ, order or direction to set aside Exhibit-P1 guidelines/
order, as it violates Right to Life, Right to Livelihood and
Freedom of Profession of the citizens.
Similarly, prayers (i), (iii) and (vi) in W.P.(C) No.17274 of 2021
read thus :
"(i) Issue a writ of certiorari, or any other appropriate writ
calling for the records leading to Exhibit-P2 Government
order and clause (iv) thereof, insofar as it is violative of
Article 14, 19 and 21 of the Constitution of India.
W.P.(C) Nos.21120 & 21463 of 2021 13
(iii) Declare that clause (iv) of Exhibit-P2 Government
order dated 10.08.2021 takes away the fundamental
rights of the citizens, including the right to life, personal
liberty and livelihood, in as much as the rider to clause
(iv) virtually means that a person cannot move out of his
abode even for his livelihood, unless he/she satisfies any
one of those requirements.
(vi) Declare further that the welfare policy for vaccination
can never affect a fundamental right, particularly when
there exists no reasonable nexus between vaccination
and prohibition of continuation of occupation/
profession/trade or even going out for essentials.
A reading of the judgment of the Division Bench reveals that
the contentions raised by the petitioners in those writ petitions
are identical to the contentions raised by the petitioners
herein. It is seen that on an elaborate consideration of the
contentions advanced by the parties, the Division Bench
repelled the contentions of the petitioners therein and
dismissed the writ petitions. The relevant extracts of the
judgment read thus :
31.Even though, contentions are raised by the petitioners,
that their fundamental rights are affected, on an analysis
of the pleadings put forth by them, we have no doubt in
W.P.(C) Nos.21120 & 21463 of 2021 14
our mind to say that the petitioners are self- centric and
are concerned only with their fundamental rights
guaranteed under Part III of the Constitution of India. The
State Government, as a trustee of the public affairs, is
duty bound to consider and view the issues due to the
pandemic, in a broader and larger canvas, and should be
concerned more with the interest of the public, rather
than individual's interest. . . . . . . . .
xxxxx xxxxx
38.The grievance raised by the petitioners, who are
seeking to quash certain clauses of the Government
orders dated 4.8.2021 and 10.8.2021 is that the clauses
violate their fundamental rights conferred under Articles
14, 19 and 21 of the Constitution of India and if the said
provisions are implemented, the fundamental rights of the
citizens along with the rights enjoyed by the petitioners,
would be infringed.
xxxxx xxxxx
40. . . . . . . Therefore, the rights enjoyed by a citizen
under Article 19(1) of the Constitution is not an absolute
right, in order to enjoy the same unmindful, ignorant, and
negligent to the realities, taking place in the nation that
are likely to affect the larger public, so as to create
devastating effect in the public at large.
41.One of the contentions raised by the petitioners is that
going by the provisions of the objectionable clause of
the orders dated 4.8.2021 and 10.08.2021, extracted
W.P.(C) Nos.21120 & 21463 of 2021 15
above, the authority constituted under the District
Management Act, 2005 is not entitled to compel the
citizens, to take COVID-19 vaccination and wear mask,
since the restrictions so imposed are violative of the
fundamental rights guaranteed under Articles 19 and 21
of the Constitution of India. However, we are of the
considered opinion that the restrictions are imposed by
the State Government and the authority under the
Disaster Management Act, 2005, after conducting in-
depth study from time-to-time, with the aid and
assistance of experts, in the field, and the
orders/guidelines are issued, taking into account the
specific requirements of the prevailing situation, so as to
ensure safety and welfare of the public at large.
xxxxx xxxxx
45.When action is taken by the State Government, in the
larger interest of the citizens, it can never be said that the
fundamental rights of the citizens guaranteed under
Articles 19 and 21 of the Constitution of India are
violated. This we say because, there is a clear
empowerment under clause (2) of Article 19, to make
reasonable restrictions by introducing law in the larger
interest of the public, and further, Article 21 of the
Constitution makes it clear that no person shall be
deprived of his life or personal liberty except according
to the procedure established by law, which also means,
when the larger interest of the citizens is a concern for
the State and authority under the Act, 2005, it is
W.P.(C) Nos.21120 & 21463 of 2021 16
imperative on the part of the State Government to ensure
that appropriate orders/ guidelines are put in place, in
order to protect the life and personal liberty of the
citizens, rather than making individualistic approach,
which if done, in our opinion, would be detrimental to the
interest of the citizens at large.
46.Now, looking at the alleged objectionable clause of the
Government order dated 10.08.2021, we are of the view
that it is not an absolute bar or prohibition, interfering
with the freedom of movement of the citizens, but it is a
reasonable restriction imposed by the State Government,
for protecting the interest of larger community from
COVID-19 pandemic.
xxxxx xxxxx
54.From the above, it is clear that what is paramount is
the life of the citizens at large, rather than individual
rights enjoyed by the citizens under Part III of the
Constitution.
56. In Dr. Raghavan Menon v. Health Inspector,
Koduvayur, reported in 1972 KLT 834, a learned single
Judge of this Court had an occasion to consider the
question of vaccination in rural areas and held that it is
sufficient to say that a system of vaccination even if it
infringes the conscientious objection of the petitioner, the
State has authority to introduce legislation, in the interest
of the people for the preservation of public health which
is a part the scheme of social welfare.
xxxxx xxxxx
58. In Ritesh Sinha v. State of Uttar Pradesh and
Another, reported in (2019) 8 SCC 1, while considering
the issue as to whether a Magistrate can authorise
investigating agency to record voice sample of the
accused, the Hon'ble Supreme Court, at paragraph (24),
held thus:
"24. Would a judicial order compelling a person
to give a sample of his voice violate the
fundamental right to privacy Under Article
20(3) of the Constitution, is the next question.
The issue is interesting and debatable but not
having been argued before us it will suffice to
note that in view of the opinion rendered by this
Court in Modern Dental College and
Research Centre and Ors. v. State of
Madhya Pradesh and Ors. [(2016) 7 SCC
353], Gobind v. State of Madhya Pradesh
and Anr. [(1975) 2 SCC 148] and the Nine
Judge's Bench of this Court in K.S.
Puttaswamy and Anr. v. Union of India and
Ors. [(2017) 10 SCC 1] the fundamental right
to privacy cannot be construed as absolute and
but must bow down to compelling public
interest. We refrain from any further discussion
and consider it appropriate not to record any
further observation on an issue not specifically
W.P.(C) Nos.21120 & 21463 of 2021 18
raised before us."
59. The State Government is imposed with a duty under
the Directive Principles of State Policy; Article 38 of the
Constitution of India, which clearly specifies that the State
shall strive to promote the welfare of the people by
securing and protecting as effectively as it may a social
order in which justice, social, economic, and political,
shall inform all the institutions of the national life.
Likewise, under Article 47, the State is endowed with the
duty for raising the level of nutrition and the standard of
living of its people and the improvement of public health
as among its primary duties. Similarly, Article 51A under
Part IVA, inserted into the Constitution of India, as per
Forty-second Amendment Act, 1976, which deals with the
fundamental duties, makes it clear that it shall be the
duty of every citizen of India to abide by the Constitution
and respect its ideals and institutions, and also to strive
towards excellence in all spheres of individual and
collective activity, so that the nation constantly rises to
higher levels of endeavour and achievement.
xxxxx xxxxx
61.On an analysis of the discussions made above, it would
be clear that interest of the State Government, in issuing
the impugned Government orders, is only a collective
interest, to protect the health, welfare, and interest of the
citizens at large and, therefore, the action of the State in
including the alleged objectionable clauses contained in
the impugned Government orders, can never be said to
W.P.(C) Nos.21120 & 21463 of 2021 19
be arbitrary, illegal, irrational or unreasonable, and
violative of the fundamental rights enjoyed by the
petitioners or the citizens of the State under the
Constitution of India.
62.Upshot of the above discussion is that the petitioners
have not made out a case for interference with the action
of the State Government in imposing the restrictive
clauses contained in the Government orders dated
4.8.2021 and 10.08.2021.
As discernible from the extracted judgment, the same was
rendered after referring to K.S.Puttaswamy as well. Needless
to say, in the light of the decision of the Division Bench, this
Court is precluded from taking a contrary view in the matter.
11. Further, in the context of the present cases, it
is worth referring to a few paragraphs of the judgment of the
Apex court in In Re: Distribution of Essential Supplies and
Services During Pandemic, 2021 SCC Online SC 339 :
"15. We had clarified in our order dated 30th April 2021, that
in the context of the public health emergency with which the
country is currently grappling, this Court appreciates the
dynamic nature of the measures. Across the globe, the
executive has been given a wider margin in enacting
measures which ordinarily may have violated the liberty of
W.P.(C) Nos.21120 & 21463 of 2021 20
individuals, but are now incumbent to curb the pandemic.
Historically, the judiciary has also recognized that
constitutional scrutiny is transformed during such public
health emergencies, where the executive functions in rapid
consultation with scientists and other experts. In 1905, the
Supreme Court of the United States in Jacobson v.
Massachusetts 197 U.S. 11 (1905), considered a
constitutional liberty challenge to a compulsory vaccination
law that was enacted to combat the smallpox epidemic.
Justice Harlan had noted the complex role of the government
in battling public health emergencies in the following terms:
"..the State may invest local bodies called into
existence for purposes of local administration with
authority in some appropriate way to safeguard
the public health and the public safety... While this
court should guard with firmness every right
appertaining to life, liberty or property as secured
to the individual by the Supreme Law of the Land,
it is of the last importance that it should not
invade the domain of local authority except when
it is plainly necessary to do so in order to enforce
that law. The safety and the health of the people
of Massachusetts are, in the first instance, for that
Commonwealth to guard and protect......So far as
they can be reached by any government, they
depend, primarily, upon such action as the State in
its wisdom may take, and we do not perceive that
this legislation has invaded any right secured by
the Federal Constitution."
W.P.(C) Nos.21120 & 21463 of 2021 21
xxxx
16. Similarly, courts across the globe have
responded to constitutional challenges to
executive policies that have directly or indirectly
violated rights and liberties of citizens. Courts
have often reiterated the expertise of the
executive in managing a public health crisis, but
have also warned against arbitrary and irrational
policies being excused in the garb of the "wide
latitude" to the executive that is necessitated to
battle a pandemic. This Court in Gujarat Mazdoor
Sabha v. State of Gujarat [AIR 2020 SC 4601],
albeit while speaking in the context of labour
rights, had noted that policies to counteract a
pandemic must continue to be evaluated from a
threshold of proportionality to determine if they,
inter alia, have a rational connection with the
object that is sought to be achieved and are
necessary to achieve them.
17.In grappling with the second wave of the
pandemic, this Court does not intend to second-
guess the wisdom of the executive when it
chooses between two competing and efficacious
policy measures. However, it continues to exercise
jurisdiction to determine if the chosen policy
measure conforms to the standards of
reasonableness, militates against manifest
arbitrariness and protects the right to life of all
W.P.(C) Nos.21120 & 21463 of 2021 22
persons. This Court is presently assuming a
dialogic jurisdiction where various stakeholders
are provided a forum to raise constitutional
grievances with respect to the management of the
pandemic. Hence, this Court would, under the
auspices of an open court judicial process, conduct
deliberations with the executive where
justifications for existing policies would be elicited
and evaluated to assess whether they survive
constitutional scrutiny."
The aforesaid observations have been made by the Apex Court
in the context of the power of the executive to take appropriate
measures during public health emergencies. The judgment of
the Division Bench referred to above is one rendered having
regard to the said judgment of the Apex Court also.
12. Further, it is now trite that where there is a
clash of two fundamental rights, the right which would advance
the public morality or public interest, would alone be enforced
through the process of Court. This proposition has been
endorsed by the Apex Court in Mr 'X' v. Hospital 'Z', (1998) 8
SCC 296. The relevant passages of the judgment read thus:
"27. . . . . . . . . In the face of these potentialities, and as
W.P.(C) Nos.21120 & 21463 of 2021 23
already held by this Court in its various decisions referred
to above, the Right of Privacy is an essential component of
right to life envisaged by Article 21. The right, however, is
not absolute and may be lawfully restricted for the
prevention of crime, disorder or protection of health or
morals or protection of rights and freedom of others.
xxxx xxxxx
43. . . . . . . . . Moreover, where there is a clash of two
Fundamental Rights, as in the instant case, namely, the
appellant's right to privacy as part of right to life and Ms.
'Y's right to lead a healthy life which is her Fundamental
Right under Article 21, the RIGHT which would advance
the public morality or public interest, would alone be
enforced through the process of Court, for the reason that
moral considerations cannot be kept at bay and the
Judges are not expected to sit as mute structures of clay,
in the Hail, known as Court Room, but have to be
sensitive, "in the sense that they must keep their
fingers firmly upon the pulse of the accepted morality of
the day." (See Legal Duties: Allen)"
That apart, it is trite that larger public interest of the
community should give way to individual apprehension of
violation of human rights and right to life guaranteed under
Article 21 [See G. Sundarrajan v. Union of India, (2013) 6
SCC 620]. No doubt, as held by the Apex Court in Aruna
W.P.(C) Nos.21120 & 21463 of 2021 24
Ramachandra Shanbaug, the right to life guaranteed under
Article 21 of the Constitution includes the right to refuse
medical treatment as well, but in the light of the decisions in
Mr.'X' and G.Sundarrajan, I am of the view that the said right
of individuals does not in any manner affect the authority of
the executive to take measures like those impugned in the writ
petitions to restore normalcy to life in times of pandemic, and
merely for the reason that the same gives certain advantages
to the vaccinated, such measures cannot be challenged as
discriminatory by the unvaccinated.
In the aforesaid circumstances, I do not find any
merit in the writ petitions and the same are, accordingly,
dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
YKB
W.P.(C) Nos.21120 & 21463 of 2021 25
APPENDIX OF WP(C) 21463/2021
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF CIRCULAR
NO.G4/81/2021/DCE, DATED 1.10.2021
ISSUED BY THE IST RESPONDENT.
Exhibit P2 A TRUE COPY OF THE G.O.(RT)
NO.669/2021/DMD DATED 2.10.2021 ISSUED
BY THE 2ND RESPONDENT.
Exhibit P3 A TRUE COPY OF TIME TABLE OF THE IST
SEMESTER EXAMINATION IS SCHEDULED TO
CONDUCT FROM 5.10.2021.
Exhibit P4 A TRUE COPY OF POLICE MEETING HELD
ONLINE UPDATE ON 21.6.2021 VIOLATING
COVID PROTOCOL.
Exhibit P5 A TRUE COPY OF THE ONLINE MATHRUBHUMI
REPORT DATED 11.5.2021 FUNERAL OF SMT.
GAOURIAMMA.
Exhibit P6 A TRUE COPY OF THE FACT SHEET OF
COVISHIELD VACCINE OF SERUM INSTITUTE
OF INDIA PVT. LTD.
Exhibit P7 A TRUE COPY OF THE FACT SHEET OF THE
COVAXIN VACCINE OF BHARAT BIOTECH.
Exhibit P8 A TRUE COPY OF THE FACT SHEET OF THE
PFIZER VACCINE.
Exhibit P9 A TRUE COPY OF THE DEATH REPORT NEWS
DATED 22.2.2021 IN ONLINE MANORAMA
NEWS.
Exhibit P10 A TRUE COPY OF THE DEATH REPORT NEWS
DATED 25.8.2021 IN ONLINE DEEPIKA NEWS.
Exhibit P11 A TRUE COPY OF THE DEATH REPORT NEWS
DATED 20.8.2021 IN ONLINE MANORAMA
W.P.(C) Nos.21120 & 21463 of 2021 26
NEWS.
Exhibit P12 A TRUE COPY OF THE DEATH REPORT NEWS
DATED 22.8.2021 IN ONLINE MANORAMA
NEWS.
Exhibit P13 A TRUE COPY OF NEWS DATED 25.6.2021 IN
ONLINE DECCAN HERALD NEWS PERTAINS TO
NEURO DISORDER TO COVISHIELD
RECIPIENTS.
Exhibit P14 A TRUE COPY OF THE NEWS DATED 21.1.2021
IN ONLINE INDIAN EXPRESS RELATING
SHIVAMOGGA DOCTOR'S DEATH REPORT.
Exhibit P15 A TRUE COPY OF STUDY REPORT DATED
3.6.2021 IN ONLINE MEDIA MALAYALAM
NEWS, RELATING 2000 POLICE PERSONAL
REPORTED COVID POSITIVE IN UTTARAKANDU
AFTER TAKING TWO-DOSE VACCINES.
Exhibit P16 A TRUE COPY OF ONLINE MATHRUBHUMI NEWS
DATED 24.5.2021.
Exhibit P17 A TRUE COPY OF THE ANSWERS TO THE
FREQUENT QUESTION ANSWERED BY THE UNION
MINISTRY OF HEALTH UPLOADED ON THEIR
WEBSITE THAT VACCINATION IS NOT
MANDATORY.
Exhibit P18 A TRUE COPY OF THE RTI ONLINE UPLOADS
OF GOVT, THE ANSWER STATING THE
VACCINATION FOR COVID-19 IS VOLUNTARY.
Exhibit P19 A TRUE COPY OF THE ANSWER ISSUED UNDER
RTI APPLICATION TO ONE SRI. MUJEEB
KOKKUR, ANSWERING THE VACCINATION IS
NOT LEGALLY MANDATORY ISSUED BY THE
OFFICE HEALTH DEPARTMENT.
Exhibit P20 A TRUE COPY OF GOVERNMENT TOTAL DEATH
STATISTICS REPORT UPLOADED IN
GOVERNMENT WEBSITE.
W.P.(C) Nos.21120 & 21463 of 2021 27
Exhibit P21 A TRUE COY OF THE PRESS RELEASE DATED
25.9.2021 IN MATHRUBHUMI ONLINE NEWS OF
THE CHIEF MINISTER OF STATE.
Exhibit P22 A TRUE COPY OF G.O.(RT)
NO.659/2021/DMD, DATED 25.9.2021.
W.P.(C) Nos.21120 & 21463 of 2021 28
APPENDIX OF WP(C) 21120/2021
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF CIRCULAR NO.QIP (2)
273133/2021/DGE. DATED 09.09.2021
ISSUED BY THE 6TH RESPONDENT.
Exhibit P2 A TRUE COPY OF WATTS APP MESSAGE SENT
BY THE DEO, KASARGODE.
Exhibit P3 A TRUE COPY OF FACT SHEET OF COVISHIED
VACCINE OF SERUM INSTITUTE OF INDIA
PVT.LTD.
Exhibit P4 A TRUE COPY OF FACT SHEET OF THE
CAVAXIN VACCINE OF BHARAT BIOTECH.
Exhibit P5 A TRUE COPY OF THE FACT SHEET OF PFIZER
VACCINE.
Exhibit P6 A TRUE COPY OF THE DEATH REPORT NEWS
DATED 22.02.2021 IN ONLINE MANORAMA
NEWS.
Exhibit P7 A TRUE COPY OF DEATH REPORT NEWS DATED
25.08.2021 IN ONLINE DEEPIKA NEWS.
Exhibit P8 A TRUE COPY OF THE DEATH REPORT NEWS
DATED 20.08.2021 IN ONLINE MANORAMA
NEWS.
Exhibit P9 A TRUE COPY OF THE DEATH REPORT NEWS
DATED 22.08.2021 IN ONLINE MANORAMA
NEWS.
Exhibit P10 A TRUE COPY OF THE NEWS DATED
25.06.2021 IN ONLINE DECCAN HERALD NEWS
PERTAIN TO NEURO DISORDER TO COVISHIED
RECIPIENTS.
Exhibit P11 A TRUE COPY OF THE NEWS DATED
21.01.2021 IN ONLINE INDIAN EXPRESS
W.P.(C) Nos.21120 & 21463 of 2021 29
RELATING SHIVAMOGGA DOCTOR'S DEATH
REPORT.
Exhibit P12 A TRUE COPY OF RISK OF HEARTBURN
VACCINATION OF PFIZER AND MODENA
VACCINATE DATED 27.06.2021 IN ONLINE
ASIANET NEWS.
Exhibit P13 A TRUE COPY OF STUDY REPORT DATED
03.06.2021 IN ONLINE MEDIA MALAYALAM
NEWS, RELATING 2000 POLICE PERSONAL
REPORTED COVID POSITIVE IN UTTARAKANDU
AFTER TAKING TWO DOSE VACCINES.
Exhibit P14 A TRUE COPY OF ONLINE MATHURBHUMI NEWS
DATED 24.05.2021 IN ONLINE MANORAMA
NEWS.
Exhibit P15 A TRUE COPY OF THE ANSWERS TO THE
FREQUENTLY ASKED QUESTION ANSWERED BY
THE UNION MINISTRY OF HEALTH UPLOADED
ON THEIR WEBSITE THAT THE VACCINATION
IS NOT MANDATORY.
Exhibit P16 A TRUE COPY OF THE RTI ONLINE UPLOADS
OF GOVT. THE ANSWER STATING THE
VACCINATION FOR COVID 19 IS VOLUNTARY.
Exhibit P17 A TRUE COPY OF THE ANSWER ISSUED UNDER
RTI APPLICATION TO ONE SRI,MUJEEB
KOKKUR, ANSWERING THE VACCINATION IS
NOT LEGALLY MANDATORY ISSUED BY THE
OFFICE HEALTH DEPARTMENT.
Exhibit P18 A TRUE COPY OF THE OPEN LETTER TO
HON'BLE PRIME MINISTER WITH THE CONSENT
OF 161 DOCTORS FROM PAN INDIA TO STOP
THE SPREAD OF MISINFORMATION AND FEAR
AMONGST THE CITIZEN IN ABSENCE OF ANY
EVIDENCE OF DEATHS DUE TO NOVEL
CORONAVIRUS.
Exhibit P19 A TRUE COPY OF GOVERNMENT TOTAL DEATH
W.P.(C) Nos.21120 & 21463 of 2021 30
STATISTICS REPORT UPLOADED IN
GOVERNMENT WEBSITE.
Exhibit P20 A TRUE COPY OF THE PRESS RELEASE DATED
25.09.2021 IN MATHURBHUMI ONLINE NEWS
OF THE CHIEF MINISTER OF STATE.
Exhibit P21 A TRUE COPY OF GO9RT) NO.659/2021/DMD
DATED 25.09.2021.
