Vaccination is not mandatory as per the latest judgment of High Court

Vaccines are not mandatory and use of force or through deception if an unwilling capable adult is made to have the  vaccine, would be considered both a crime and tort or civil wrong, thus rules the High Court on 23^rd June 2021

Similar law is already laid down by the Supreme Court of India

The Meghalaya High Court has taken Suo Motu (on its own motion) cognizance of the ‘mandatory vaccination in Meghalaya’ with the Registrar General moving an issue-based PIL in this regard, making the State of Meghalaya, represented by the Chief Secretary as the Respondent.

(PIL No. 6/2021, Registrar General, High Court of Meghalaya Vs. State of Meghalaya)

“It has been brought to the notice of the High Court that the State, through various orders of the Deputy Commissioners, have made it mandatory for shopkeepers, vendors, local cabbies and others to get themselves vaccinated before they can resume their business.

Whether vaccination can at all be made mandatory and such mandatory action can affect the right of a citizen to earn his/her livelihood, is an issue which required consideration,” the PIL stated.

Refer the link:

http://www.uniindia.com/meghalaya-hc-questions-mandatory-vaccination/east/news/2427247.html

The judgment of High Court of Meghalaya dated 23^rd June 2021 states that;

“Thus, by use of force or through deception if an unwilling capable adult is made to have the flu vaccine would be considered both a crime and tort or civil wrong, as was ruled in Airedale NHS Trust v Bland reported at 1993 AC 789 = (1993) 2 WLR 316 = (1993) 1 All ER 821, around thirty years (30) ago. Thus, coercive element of vaccination has, since the early phases of the initiation of vaccination as a preventive measure against several diseases, have been time and again not only discouraged but also consistently ruled against by the Courts for over more than a century.”

Copy of the judgment is attached below.
The judgment of Supreme Court of India also states that vaccines are not mandatory and if any person or Authority coerces the public for vaccination, then such person or Authority would be liable for action under sections 188, 166 et al of the Indian Penal Code (Common Cause Vs. Union of India (2018) 5 SCC 1)

LEGAL POSITION ON VACCINATION IN INDIA:

1. The legal position settled by Hon’ble Supreme Court and various High Courts in India against forced vaccination and right to choose the health treatment for oneself and one’s children.

1.1.    It is a settled legal position that a person has the fundamental right to choose medication as per his choice.

[Recent judgment dated 23^rdJune 2021 passed by the Division Bench Meghalaya High Court regarding Corona Vaccines; Supreme Court judgment in the case between “Common Cause Vs. Union of India (2018) 5 SCC 1”]

 1.2. On 23^rd June, 2021 in the case between Registrar General, High Court of Meghalaya Vs. State of Meghalaya PIL No.6/2021, it is ruled by High Court as under;

“It has been brought to the notice of this High Court that the State of Meghalaya, through various orders of the Deputy Commissioners, has made it mandatory for shopkeepers, vendors, local taxi drivers and others to get themselves vaccinated before they can resume their businesses. 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, is an issue which requires consideration.

Thus, by use of force or through deception if an unwilling capable adult is made to have the „flu vaccine would be considered both a crime and tort or civil‟ wrong, as was ruled in Airedale NHS Trust v Bland reported at 1993 AC 789 = (1993) 2 WLR 316 = (1993) 1 All ER 821, around thirty years (30) ago. Thus, coercive element of vaccination has, since the early phases of the initiation of vaccination as a preventive measure against several diseases, have been time and again not only discouraged but also consistently ruled against by the Courts for over more than a century.

Till now, there has been no legal mandate whatsoever with regard to coercive or mandatory vaccination in general and the Covid19 vaccination drive in particular that can prohibit or take away the livelihood of a citizen on that ground.

In the “frequently asked questions” (FAQs) on COVID-19 vaccine prepared and uploaded by the Ministry of Health and Family Welfare, Government of India, in its official website, the question which appears under serial number 3 reads, “Is it mandatory to take the vaccine?” The “potential response”, which is provided in the official website reads, “Vaccination for COVID-19 is voluntary.

In this context, around one hundred and seven (107) years ago, in Schloendroff v Society of New York Hospitals reported at (1914) 211 NY 125 = 105 NE 92; 1914 NY Justice Cardozo ruled that „every human being of adult years and sound mind has a right to determine what shall be done with their body‟.

 This finds mention in decisions of the European Commission and Court of Human Rights [X vs. Netherlands of 1978 (decision rendered on 4th December, 1978); X vs. Austria of 1979 (decision rendered on 13th December, 1979)] which has become truer in the present times across the world than ever before. Compulsorily administration of a vaccine without hampering one‟s right to life and liberty based on informed choice and informed consent is one thing. However, if any compulsory vaccination drive is coercive by its very nature and spirit, it assumes a different proportion and character.

 However, vaccination by force or being made mandatory by adopting coercive methods, vitiates the very fundamental purpose of the welfare attached to it.”

1.3.    That, the Ministry of Health and Family Welfare on its website under the heading “Frequently Asked Questions on Covid-19 Vaccine” has stated that the Covid-19 vaccine is voluntary. The link to the FAQ’s Ministry of Health and Family welfare (MOHFW) is as under:

https://www.mohfw.gov.in/pdf/FAQsonCOVID19VaccineDecember2020.pdf

1.4.    Further, in a reply to RTI application dated 9^th March 2021 filed by Anurag Sinha of Jharkhand, the Central Ministry of Health and Family Welfare has stated very clearly that “taking the Covid Vaccines is entirely voluntary and there is no relation whatsoever to provision of government facilities, citizenship, job etc. to the vaccine.”

1.5.     In a reply dated 23^rd March 2021 to the RTI filed by Mr. Dinesh BhausahebSolanke,RTI number A.60011/06/2020-CVAC, the Ministry of Health and Family Welfare, stated that, “the Covid-19 Vaccine being voluntary, there is no provision for compensation as of now.”

1.6.    In a reply to RTI filed by Mr. Tarun, dated 16^th April 2021, file number  MOHFW/R/E/21/01536, the Ministry of Health and Family Welfare, replied to the first question, “Is Covid Vaccine Voluntary or Mandatory?”, thus: “Vaccination for Covid-19 is Voluntary”. Further when the applicant asked in his subsequent questions, “Can any government or private organization hold our salary or terminate us from Job in case of not taking Covid vaccine?” and “Can government cancel any kind of government facilities such as subsidies, ration and medical facilities in case of not taking covid vaccine?” the reply was, “In view of above reply, these queries do not arise”.

1.7.    A perusal of the above RTI replies makes it is clear that the Union of India has made the vaccination drive completely voluntary, to coerce someone to take vaccine is not only contrary to the guidelines of the Union of India but violative of Article 14 and 21 of the Constitution of India.

1.8.    There are some crucial provisions of International Covenant on Civil and Political Rights (ICCPR) attracted due to the violations of rights of citizens of those countries which are party to the Covenant and members of United Nations Organization. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49.

The relevant Articles of aforesaid covenant applicable for the present situation of corona pandemic are as under;
Article 6 (1) 
Article 6 (1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
Article 7
“Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

1.10. In the case between the Parents Teachers Association, Government Higher Secondary School, Kokkur, Kerala and the State of Kerala WP (C) 36065 of 2017, the Hon’ble High Court of Kerala had passed the order on dated as under;

1.11.  Also, in the case (W.P.(C) 343/2019 & CM Nos.1604-1605/2019) between Master Haridaan Kumar (Minor through Petitioners Anubhav Kumar and Mr. Abhinav Mukherji) Versus Union of India, & W.P.(C) 350/2019 & CM Nos. 1642-1644/2019 between Baby Veda Kalaan& Others Versus Director of Education & Others.

1.13. Needless to mention here that, a PIL is filed in the Supreme Court of India on 13^th May 2021 bearing Writ Petition No. 000607 of 2021 between the parties Dr. Jacob Puliyel  Vs. Union of India and Ors.

1.14.  However, it seems that some of the entities, authorities and employers,  either due to ignorance of law or driven by ulterior purposes or for the reasons best known to them, are forcing  people to get vaccinated, which is direct violation of fundamental rights guaranteed under our Constitution of India and also by International Covenant on Civil & Political Rights (ICCPR).

2. Person or authority forcing for vaccination will be liable for action under contempt and also face prosecution under section 188, 166 et al of Indian Penal Code:-

2.1. Any Authority or person or a Company that does not follow the above guidelines and prevailing laws, will be liable for action under Contempt of Courts Act and also under various provisions of IPC such as  188,166and others of IPC.

2.2.In Prominent Hotels Case 2015 SCC OnLine Del 11910, it is ruled as under;

22.2. In East India Commercial Co. Ltd. v. Collector of Customs, Calcutta, AIR 1962 SC 1893, Subba Rao, J. speaking for the majority observed reads as under:

“31. ……This raises the question whether an administrative tribunal can ignore the law declared by the highest Court in the State and initiate proceedings in direct violation of the law so declared under Art. 215, every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself. Under Art. 226, it has a plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority, including in appropriate cases any Government within its territorial jurisdiction. Under Art. 227 it has jurisdiction over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that Court and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate Courts can equally do so, for there is no specific provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate Courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working; otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer. We, therefore, hold that the law declared by the highest Court in the State is binding on authorities, or tribunals under its superintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the notice issued by the authority signifying the launching of proceedings, contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction.”

  (Emphasis supplied)

  22.3. The above legal position was reiterated in Makhan Lal v. State of Jammu and Kashmir, (1971) 1 SCC 749, in which Grover, J. observed (at page 2209)—

“6. The law so declared by this Court was binding on the respondent-State and its officers and they were bound to follow it whether a majority of the present respondents were parties or not in the previous petition.”

                           (Emphasis supplied)

22.4. In Baradakanta Mishra Ex-Commissioner of Endowments v. Bhimsen Dixit, (1973) 1 SCC 446, the appellant therein, a member of Judicial Service of State of Orissa refused to follow the decision of the High Court. The High Court issued a notice of contempt to the appellant and thereafter held him guilty of contempt which was challenged before the Supreme Court. The Supreme Court held as under:-

“15. The conduct of the appellant in not following previous decisions of the High Court is calculated to create confusion in the administration of law. It will undermine respect for law laid down by the High Court and impair the constitutional authority of the High Court. His conduct is therefore comprehended by the principles underlying the law of Contempt. The analogy of the inferior court’s disobedience to the specific order of a superior court also suggests that his conduct falls within the purview of the law of Contempt. Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly the deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court, generally, but is also likely to subvert the Rule of Law and engender harassing uncertainty and confusion in the administration of law”

       (Emphasis supplied)

22.7. In Maninderjit Singh Bitta v. Union of India, (2012) 1 SCC 273, the Supreme Court held as under:-

“26. … Disobedience of orders of the court strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. If the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs…

29. Lethargy, ignorance, official delays and absence of motivation can hardly be offered as any defence in an action for contempt.Inordinate delay in complying with the orders of the courts has also received judicial criticism. … Inaction or even dormant behaviour by the officers in the highest echelons in the hierarchy of the Government in complying with the directions/orders of this Court certainly amounts to disobedience. … Even a lackadaisical attitude, which itself may not be deliberate or wilful, have not been held to be a sufficient ground of defence in a contempt proceeding. Obviously, the purpose is to ensure compliance with the orders of the court at the earliest and within stipulated period.”

                                                         (Emphasis supplied)

22.9. In Priya Gupta v. Addl. Secy. Ministry of Health and Family Welfare, (2013) 11 SCC 404, the Supreme Court held as under:-

“12. The government departments are no exception to the consequences of wilful disobedience of the orders of the Court. Violation of the orders of the Court would be its disobedience and would invite action in accordance with law. The orders passed by this Court are the law of the land in terms of Article 141 of the Constitution of India. No court or tribunal and for that matter any other authority can ignore the law stated by this Court. Such obedience would also be conducive to their smooth working, otherwise there would be confusion in the administration of law and the respect for law would irretrievably suffer. There can be no hesitation in holding that the law declared by the higher court in the State is binding on authorities and tribunals under its superintendence and they cannot ignore it. This Court also expressed the view that it had become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have a grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty are important hallmarks of judicial jurisprudence developed in this country, as discipline is sine qua non for effective and efficient functioning of the judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and to abide by the rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law. (Ref. East India Commercial Co. Ltd. v. Collector of Customs [AIR 1962 SC 1893] and Official Liquidator v. Dayanand [(2008) 10 SCC 1 : (2009) 1 SCC (L&S) 943].) (SCC p. 57, paras 90-91)

13. These very principles have to be strictly adhered to by the executive and instrumentalities of the State. It is expected that none of these institutions should fall out of line with the requirements of the standard of discipline in order to maintain the dignity of institution and ensure proper administration of justice.
14. It is true that Section 12 of the Act contemplates disobedience of the orders of the court to be wilful and further that such violation has to be of a specific order or direction of the court. To contend that there cannot be an initiation of contempt proceedings where directions are of a general nature as it would not only be impracticable, but even impossible to regulate such orders of the court, is an argument which does not impress the court. As already noticed, the Constitution has placed upon the judiciary, the responsibility to interpret the law and ensure proper administration of justice. In carrying out these constitutional functions, the courts have to ensure that dignity of the court, process of court and respect for administration of justice is maintained.Violations which are likely to impinge upon the faith of the public in administration of justice and the court system must be punished, to prevent repetition of such behaviour and the adverse impact on public faith. With the development of law, the courts have issued directions and even spelt out in their judgments, certain guidelines, which are to be operative till proper legislations are enacted. The directions of the court which are to provide transparency in action and adherence to basic law and fair play must be enforced and obeyed by all concerned. The law declared by this Court whether in the form of a substantive judgment inter se a party or are directions of a general nature which are intended to achieve the constitutional goals of equality and equal opportunity must be adhered to and there cannot be an artificial distinction drawn in between such class of cases. Whichever class they may belong to, a contemnor cannot build an argument to the effect that the disobedience is of a general direction and not of a specific order issued inter se parties. Such distinction, if permitted, shall be opposed to the basic rule of law.
15. … The essence of contempt jurisprudence is to ensure obedience of orders of the Court and, thus, to maintain the rule of law. History tells us how a State is protected by its courts and an independent judiciary is the cardinal pillar of the progress of a stable Government. If over-enthusiastic executive attempts to belittle the importance of the court and its judgments and orders, and also lowers down its prestige and confidence before the people, then greater is the necessity for taking recourse to such power in the interest and safety of the public at large. The power to punish for contempt is inherent in the very nature and purpose of the court of justice. In our country, such power is codified…”

                                                         (Emphasis supplied)

22.10. In Subrata Roy Sahara v. Union of India (2014) 8 SCC 470, the Supreme Court held that the decisions rendered by the Supreme Court have to be complied with by all concerned. Relevant portion of the said judgment is as under: –

“17. There is no escape from, acceptance, or obedience, or compliance of an order passed by the Supreme Court, which is the final and the highest Court, in the country. Where would we find ourselves, if the Parliament or a State Legislature insists, that a statutory provision struck down as unconstitutional, is valid? Or, if a decision rendered by the Supreme Court, in exercise of its original jurisdiction, is not accepted for compliance, by either the Government of India, and/or one or the other State Government(s) concerned? What if, the concerned government or instrumentality, chooses not to give effect to a Court order, declaring the fundamental right of a citizen? Or, a determination rendered by a Court to give effect to a legal right, is not acceptable for compliance? Where would we be, if decisions on private disputes rendered between private individuals, are not complied with? The answer though preposterous, is not far-fetched. In view of the functional position of the Supreme Court depicted above, non-compliance of its orders, would dislodge the cornerstone maintaining the equilibrium and equanimity in the country’s governance. There would be a breakdown of constitutional functioning, It would be a mayhem of sorts.

185.2. Disobedience of orders of a Court strikes at the very root of the rule of law on which the judicial system rests. Judicial orders are bound to be obeyed at all costs. Howsoever grave the effect may be, is no answer for non-compliance with a judicial order. Judicial orders cannot be permitted to be circumvented. In exercise of the contempt jurisdiction, courts have the power to enforce compliance with judicial orders, and also, the power to punish for contempt.”

22.11. In State of Gujarat v. Secretary, Labour Social Welfare and Tribunal Development Deptt. Sachivalaya, 1982 CriLJ 2255, the Division Bench of the Gujarat High Court summarized the principles as under:-

“11. From the above four decisions, the following propositions emerge:

(1) It is immaterial that in a previous litigation the particular petitioner before the Court was or was not a party, but if a law on a particular point has been laid down by the High Court, it must be followed by all authorities and tribunals in the State;

(2) The law laid down by the High Court must be followed by all authorities and subordinate tribunals when it has been declared by the highest Court in the State and they cannot ignore it either in initiating proceedings or deciding on the rights involved in such a proceeding;

(3) If in spite of the earlier exposition of law by the High Court having been pointed out and attention being pointedly drawn to that legal position, in utter disregard of that position, proceedings are initiated, it must be held to be a wilful disregard of the law laid down by the High Court and would amount to civil contempt as defined in section 2(b) of the Contempt of Courts Act, 1971.”

 (Emphasis supplied)

Thus, it is amply clear that no person, Authority or a Company can force a person for vaccination.

The judgment of High Court of Meghalaya dated 23^rd June 2021 is conspicuously absent from the coverage of Mainstream Media and the popular legal reporting websites!

P.S. Indian Bar Association is thankful to the team of ‘Awaken India Movement’ for their valuable and timely inputs.

https://awakenindiamovement.com/