'Serious Question About Locus Of Petitioner': Calcutta HC Dismisses PIL Against Physical Classes For Unvaccinated Students Aged Below 15 Yrs

The Calcutta High Court on Monday dismissed a Public Interest Litigation (PIL) seeking directions to ensure that conduct of physical classes for Class VIII students in the State should resume only for vaccinated children and that children who are below 15 years of age i.e. are born after the year 2007 should be permitted to attend online classes. 

The PIL had been filed one Gaurav Purakayastha, a practising advocate of the High Court residing in the Birbhum district. 

It may be noted that the Central government had issued a notification stipulating that children aged 15 years or more i.e. all those whose birth year is 2007 or before shall be eligible for Covid-19 vaccination with effect from January 3, 2022. 

A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj dismissed the plea on the ground that there arises 'serious question about the locus of the petitioner' and further observed that the plea filed is not supported by adequate materials and documents. 

The Bench further opined that since one PIL is already pending before the Court regarding the issue of reopening of schools, entertaining the instant petition would result in multiplicity of proceedings. However, liberty was granted to the petitioner to file a fresh application along with all relevant materials as so advised. 

Pertinently, the High Court on January 28, 2022 had sought response from the State government on a batch of PILs seeking reopening of schools and colleges in the State. Thereafter, the State government had issued a notification allowing for the conduct of physical classes for students of Class VIII onwards along with the reopening of higher educational institutions.

Submissions on behalf of the petitioner 

Advocate Ritzu Ghosai appearing for the petitioner submitted that children who are born after 2007 are unvaccinated since they fall outside the purview of the vaccination policy of the central government and are hence susceptible to Covid-19 infection.

He further argued that such unvaccinated students are being compelled to attend physical classes. In this regard, he placed reliance on a circular issued by a private school that is Delhi Public School (DPS) Megacity, New Town in Kolkata. The circular stipulated that all students from Class 8 will be mandatorily required to attend physical classes from February 7, 2022. It was further stated in the circular that the students will be divided into 2 groups and on alternate days physical classes will be held for each of these groups. 

Submissions on behalf of the State government 

Advocate General S.N Mookherjee appearing for the State government vehemently opposed the petition by questioning the locus standi of the petitioner. He argued that the petitioner is neither a parent of a student nor is he an educationist attached to educational institutions. It was further brought to the notice of the Court that the petitioner is a resident of Birbhum district raising an issue relating to the reopening of schools in Kolkata. 

He also submitted that the instant petition is bereft of proper material and that on the basis of the circular issued by only one private unaided school, the petition has been filed which is therefore untenable in law. 

It was also contended that if students are divided into two groups i.e. vaccinated and unvaccinated and if only vaccinated students are allowed to attend schools physically then it would lead to discrimination between them. The Advocate General further submitted that if the prayer of the petitioner is entertained then it would lead encourage a 'digital divide' which is dangerous. He apprised the Court that conducting online classes in government schools is close to impossible since children in rural areas do not have the resources to avail internet connection. 

It was further submitted that a policy decision had been taken by the State government regarding the reopening of schools and thereafter a circular had been issued to this effect on January 31, 2022. 

Reliance was also placed on a report by the World Health Organisation (WHO) stipulating the adverse socio-economic impact of the Covid-19 pandemic on children. He thus argued that on account of closure of schools, the interest of children is suffering. 

The Court was also apprised that the positivity rate in the State is currently at 3.3 percent which indicates a sharp fall in Covid-19 cases and that all schools have been instructed to follow Covid-19 protocol. The Advocate General also contended that in case there is any lapse on the part of educational institutions in adhering to Covid-19 protocol then appropriate complaints can be made to this effect. 

It was also submitted that many States have allowed for the reopening of schools and that in Delhi schools have reopened from today despite the positivity rate and the number of Covid-19 cases being higher than West Bengal. 

Reliance was also placed on the Madhya Pradesh High Court decision in Aditya Singh Solanki v. State of Madhya Pradesh wherein a similar PIL had been dismissed after noting that the PIL had been filed to gain publicity. 

Submissions on behalf of the Union of India 

ASG Y.J Dastoor appearing for the Union of India submitted that the government has unnecessarily been impleaded as a party although no prayers have been made against the Centre. However, he apprised the Court that the Centre supports the decision of the State government to reopen schools and other educational institutions. 

Case Title: Gaurav Purakayastha v. State of West Bengal 

Case Citation: 2022 LiveLaw (Cal) 39

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