The court took suo moto cognizance of the various orders passed by the Deputy Commissioners, mandating the vaccination for all shopkeepers, businessmen, local taxi drivers, and others to start their businesses.
Facts of the Case
As our citizenry is dwindling over the efficacy of vaccination and an air-filled with hesitancy regarding getting vaccinated, travels in the atmosphere, people are finding it harrowing to take their jabs. The same is the scene in Meghalaya, where people are behaving reluctantly to get vaccinated, owing to which, the Deputy Commissioners imposed a gag order, rebuking the shopkeepers, taxi drivers, businessmen who were operating without getting vaccinated. These orders saw the court initiating a motion on its own in court to deal with the issue that 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? It was an issue that required pithy observance on the part of the court.
Court’s notions (suo moto)
The court vigorously reverberated that Article 21 encompasses within its fold, the right to health, as a fundamental right. By that same analogy, the right to health care, which includes vaccination, is a fundamental right. However, vaccination by force or being made mandatory by adopting coercive methods vitiates the very fundamental purpose of the welfare attached to it. The court reminded the advocate general, who was representing the State government, of the fact that in Olga Tellis and Ors v/s Bombay Municipal Corporation and Ors, it was clearly expressed that the right to life includes the right to livelihood. Thus, any action of the State which is in absolute derogation of this basic principle is squarely affected by article 19(1)(g). It pointed out the pivotal question as to whether an order passed by the state government or its authorities has the power of subverting or abridging away the fundamental rights of the citizens? Failing to get a response from the advocate general, the court remarked that even though the subjections enunciated in entry 6 of List II of the seventh schedule of the constitution deal with healthcare and have to be looked after by the state government, it still has to be mindful of the fact that any law made by it has to agree with the fundamental right to life and livelihood of the individual. It bluntly stated that in this case, there is a clear lack of legitimacy in prohibiting freedom of carrying on any occupation, trade, or business amongst a certain category or class of citizens who are otherwise entitled to do so, making the order ill-conceived, arbitrary or indicative of colorable exercise of power.
An order of the State, certainly cannot put an embargo on the fundamental right to life of an individual by stripping off his/her right to livelihood, except according to the procedure established by law. The court exposed the hypocrisy of the state government by stating that, in the FAQs on COVID19, prepared and uploaded by the ministry of health and family welfare, Government of India, the question which appears under serial number 3 reads, “Is it mandatory to take the vaccine?” The “potential response”, which is provided on the official website reads, “Vaccination for COVID-19 is voluntary. Now, the order imposes a blanket ban on the operation of the businesses by shopkeepers, taxi drivers, etc, until they get themselves vaccinated. It elucidated thoroughly, how the order acts a paradox! It reminisced of the landmark ruling given in Schloendroff v/s Society of New York hospitals, wherein Justice Cardozo ruled that every human being who is an adult and of sound mind has the right to determine what shall be done with their body. Thus, if an unwilling capable adult is made to have the flu vaccine, then it would tantamount to a tort and crime.
Arguments put forth by the learned counsel of respondent
Mr. A.Kumar, the learned counsel of the respondents, submitted before the Hon’ble Bench that the principal secretary to the Government of Meghalaya had issued certain guidelines on 22nd June 2021, in response to which, the Deputy Commissioners did what they did. The principal Secretary advised in the guidelines that these orders have to be seen as “ persuasive advisory” and “not as a coercion” with regards to vaccination. Very smartly, he shifted the status of a bellwether to the principal secretary from the Deputy Commissioners.
The court after hearing what the learned Advocate General offered, issued a slew of guidelines so that the public at large is provided with an option of making an informed choice:
- All shops/establishments/local taxis/auto-rickshaws/maxi cabs and buses should display prominently at a conspicuous place, a sign, “VACCINATED”, in the event all employees and staff of the concerned shop/establishment are vaccinated. Similarly, in the case of local taxis/auto-rickshaws/maxi cabs and buses where the concerned driver or conductor or helper(s) are vaccinated.
- All shops/establishments/local taxis/auto-rickshaws/maxi cabs and buses should display prominently at a conspicuous place, a sign, “NOT VACCINATED”, in the event all the employees and staff of the concerned shop/establishment are not vaccinated. Similarly, in the case of local taxis/auto-rickshaws/maxi cabs and buses where the concerned driver or conductor or helper(s) are not vaccinated.
- The actual dimension of the signs, “VACCINATED” or “NOT VACCINATED” and the conspicuous place where such sign is required to be affixed/displayed shall be decided by the concerned authority of the State. In the event, any shops/establishments/local taxis/auto-rickshaws/maxi cabs and buses flout the above directions, the concerned authority of the State shall immediately direct its closure/stoppage of plying.
- So far as vaccine hesitation issue is concerned, it is required to be dealt with by the State Government in the manner specified in its new guidelines issued yesterday by the Principal Secretary, Health and Family Welfare Department, Government of Meghalaya, read with the observations made by us hereinbefore. This Court shall monitor this issue closely so that the State Government can overcome the vaccine hesitation problem at the earliest and all eligible persons in the State of Meghalaya are vaccinated well within the timeframe as may be specified by the State.
- In the event, there is any attempt made by any person/organization to spread misinformation regarding the efficacy of vaccination amongst the people of this State, the concerned authority of the State shall immediately step in and proceed against such person/organization following the law. The concerned authority of the State shall also bring such instances to the notice of this Court.
The court, concluding its guidelines stated that, with regards to the implementation of various government schemes for the marginalized section of the society, the learned registrar general has to apprise the member secretary of the Meghalaya state legal services authority, about the order dated 22nd June 2021. The members’ secretary, in turn, has to apprise the secretaries of the district legal service authority, about the same. The secretaries of the district legal service authority have to file a report entailing as to whether the concerned departments are taking steps to ensure that the Government Welfare Schemes for the marginalized section of the society are being properly and effectively implemented in a time-bound manner following the guidelines of the respective schemes. The secretaries need to watchful of the fact that the report is to be submitted within four weeks from the date so that the Member Secretary can compile the same and place the compilation before this Court through the learned Registrar General.
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