Kerala HC Upholds Vaccination Mandate To Enter Colleges; Says Advantages Given To Vaccinated Not Discriminatory

The Kerala High Court recently ruled that although an individual is entitled to the right to refuse medical treatment under the Constitution, such right does not affect the authority of the executive to take measures to restore normalcy amidst a pandemic. Justice P.B. Suresh Kumar observed so while upholding a Government order and a circular that mandated the students to be vaccinated with at least one dose to be allowed into higher educational institutions and their hostels which re-opened recently. "No doubt, as held by the Apex Court in Aruna Ramachandra Shanbaug, the right to life guaranteed under Article 21 of the Constitution includes the right to refuse medical treatment as well, but ... 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."Brief Background: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.On 17.09.2021, the Government in the Higher Education Department, considering that the relaxations on restrictions imposed for prevention of Covid-19 pandemic, ordered to open the higher education institutions including professional colleges in the State for the final year graduate students and postgraduate students. In the light of the said Government Order, the Director of Collegiate Education issued a 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 was clarified, however, in the circular that those who are unable to take the vaccine on account of health issues can also enter the educational institutions and their hostels on the production of medical certificates, indicating their inability to take the vaccine.On 02.10.2021, the Chairman of the Executive Committee of the State Disaster Management Authority issued an order directing 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. In the circumstances, the petitioners moved the court since according to them, the circular and the order are illegal and unconstitutional. The petitioners, therefore, sought orders quashing the impugned circular and order to the extent they restrict the students from continuing their education in the colleges when the colleges reopen.Contentions Raised:The petitioners' case is that the vaccine is not compulsory and the right to life guaranteed under Article 21 of the Constitution of India, especially the right to privacy available to the petitioners also gives them the freedom to abstain from taking the vaccine. Advocates R.O Muhamed Shemeem and Naseeha Beegum P.S. appearing for the petitioners relied on K.S. Puttaswamy v. Union of India [(2017) 10 SCC 1] to fortify their case. Special Government Pleader V. Manu responded to this argument by reiterating that no fundamental right is absolute and in the interest of the general public, reasonable restrictions can be imposed by the Government. He argued that 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. Observations of the Court: The Court examined the decision of a Division Bench cited by the respondents whereby pleas challenging the decisions of the competent authorities permitting entry of the vaccinated in public places were dismissed. In the said case, the petitioners therein had argued that the impugned decisions are discriminatory and that persons who are vaccinated and unvaccinated are to be treated alike. "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 Court noted that the decision of the Division Bench was rendered after referring to the K.S Puttaswamy judgment, and in the light of such circumstances, it observed that it was precluded from taking a contrary view in the matter. The Court also analysed the decision in In Re: Distribution of Essential Supplies and Services During Pandemic where the Apex Court had elaborated on...

Kerala HC Upholds Vaccination Mandate To Enter Colleges; Says Advantages Given To Vaccinated Not Discriminatory

Hannah M Varghese

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