Criminal Writ Petition to Quash Mandatory Vaccinations for Mumbai Local Train Travel, which is Discriminatory, Illegal, Unconstitutional & Violative of Fundamental Human Rights
A Writ Petition is filed in the Bombay HC against the unscientific, illogical, arbitrary and unconstitutional circulars issued by the Government of Maharashtra regarding Mandatory Vaccine for Train Travel from the 15thAugust 2021 onwards, as well as requirement to work in shops and restaurants, to enter malls, along with the requirement of Mandatory RT-PCR or 2 doses of Vaccination to enter the state.
The petitioner has prayed for quashing the impugned circulars and for directing prosecution of officials of State of Maharashtra under section 55, 56, 58 of Disaster Management Act, 2005 and sections 188, 166, 120(B) and 34 of Indian Penal Code for acting against the directions of Central Government and Supreme Court of India.
Vaccination is completely voluntary as per the statement of the Government of India as stated in the Parliament on 19thMarch 2021 – “There is no provision of compensation for recipients of Covid-19 vaccine against any kind of side effects or medical complications that may arise due to inoculation. The Covid-19 vaccination is entirely voluntary for the beneficiary”. The Government of India has clarified the same in multiple RTIs (Right to Information) on this issue as well.
There are various High Court Judgments from states like Guwahati, Meghalaya, Mizoram, Arunachal Pradesh and Nagaland, which have ruled that vaccination cannot be made mandatory as a condition to access jobs, travel, educational institutions, public places, as there is no difference between a vaccinated person and unvaccinated person. Prior to the current Covid-19 crisis, the Delhi High Court and Kerala High Court have both ruled that vaccines cannot be made mandatory.
Supreme Court had clarified that when anything is prohibited, then it is not allowed to be done indirectly.
Covid-19 vaccines are experimental, cause a wide variety of serious adverse events and deaths, and have not yet completed Phase 3 trials, thus making them experimental. These vaccines have been approved under Emergency Use Authorization. Hence any requirement to make these mandatory in order to access public places or ways to travel, is unconstitutional and void ab initio.
Recent scientific evidence and data from all over the world, including India, show that fully vaccinated people with 2 doses can and do spread and transmit the virus, as well as contract it, get seriously ill from it, and die from it. The vaccines do not stop infection or transmission of Sars-Cov-2, hence there is no basis for the Government to mandate these on the grounds of public health. More than 40,000 breakthrough cases amongst the vaccinated have been found in the State of Kerala alone, a few days ago.
On the other hand, there is solid scientific evidence that naturally acquired immunity developed after being exposed to the virus, is far superior than vaccine derived immunity, and that such immunity lasts for months and even years after getting infected. Yet the government has not made any provisions in their circulars for people who have contracted the Novel Corona Virus and have developed natural immunity. The latest Serological Survey conducted by the Government of India found that Covid-19 antibodies have been detected in 67.6% of the population. Hence the Indian population has developed herd immunity.
Asymptomatic people do not possess the capability to infect others and the idea of asymptomatic transmission is scientifically bogus. The RT-PCR test as well as RAT test, both have a high rate of false positives. The gold standard test known as “Virus Culture” exists, which can definitely tell us if someone is carrying live infectious virus in them or not, but the government is not using this test. People can test positive with the RT-PCR or RAT tests months after being cured from any infection, as these tests are picking up dead fragments of the virus, and not the whole infectious virus. Hence asymptomatic people need to be stopped being tested, and only people with covid symptoms should be tested, with testing changed in line with scientific evidence.
We urge the media & our fellow Mumbaikars to spread awareness about the points and facts raised in these petitions, and raise their voice together against these unscientific and unconstitutional circulars issued by our Government. The petitioners have prayed that the circulars be quashed, and demand the prosecution of the State officers that have issued these unconstitutional circulars.
A joint Press Note by Indian Bar Association and Awaken India Movement (National Steering Committee) has been issued to this effect on 15th August 2021.
Download the petition by clicking the link below:
Prof. Bhaskaran Raman (Department of CSE) of the prestigious institute of IIT Bombay,has appealed to the Hon’ble President and Hon’ble Prime Minister of India to reopen the schools in India.
Prof. Raman states that the cost-benefit analysis is overwhelmingly in favour of reopening the schools. Regarding recent talks around vaccinating children under the age of 18 years, Prof. Raman states that the risk benefit analysis behind this is also overwhelmingly against vaccinating the children.
Prof. Raman has backed up his appeal by citing various research reports and studies published in reputed journals and newspapers.
The letter appeal dated July 6, 2021 is presented in four sections:
- Status and comparison with other parts of the world
- The extreme costs of keeping children out of school
- Negligible risk of Covid-19 for children
- Schools do not play a significant role in spread of Covid-19
- On new variants and possible third wave affecting children
- Covid-19 vaccines for children : little benefit for huge risk
The 7 page letter appeal, copy of which is marked to Indian Bar Association, concludes with a summary that states there is an overwhelming case for reopening schools in India with immediate effect.
IBA has sent its Representation Letter to Hon’blePresident and Hon’ble Prime Minister of India on July 8, 2021 requesting them to urgently consider the appeal of Prof. Bhaskaran Raman.
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 23rd 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:
The judgment of High Court of Meghalaya dated 23rd 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:
- 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 23rdJune 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 23rd 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:
1.4. Further, in a reply to RTI application dated 9th 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 23rd 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 16th 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 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.”
Article 6 (3)
Article 6 (3) When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
1.9.In Common Cause Vs. Union of India (2018) 5 SCC 1, it is ruled as under;
“169. In the context of health and medical care decisions, a person’s exercise of self-determination and autonomy involves the exercise of his right to decide whether and to what extent he/she is willing to submit himself/herself to medical procedures and treatments, choosing amongst the available alternative treatments or, for that matter, opting for no treatment at all which, as per his or her own understanding, is in consonance with his or her own individual aspirations and values.
- Conclusions in seriatim
- In view of the aforesaid analysis, we record our conclusions in seriatim:
202.1. A careful and precise perusal of the judgment in Gian Kaur case [Gian Kaur v. State of Punjab, (1996) 2 SCC 648: 1996 SCC (Cri) 374] reflects the right of a dying man to die with dignity when life is ebbing out, and in the case of a terminally-ill patient or a person in PVS, where there is no hope of recovery, accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity.
202.2. The Constitution Bench in Gian Kaur [Gian Kaur v. State of Punjab, (1996) 2 SCC 648 : 1996 SCC (Cri) 374] has not approved the decision in Airedale [Airedale N.H.S. Trust v. Bland, 1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821 (CA & HL)] inasmuch as the Court has only made a brief reference to the Airedale case [Airedale N.H.S. Trust v. Bland, 1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821 (CA & HL)] .
202.3. It is not the ratio of Gian Kaur [Gian Kaur v. State of Punjab, (1996) 2 SCC 648: 1996 SCC (Cri) 374] that passive euthanasia can be introduced only by legislation.
202.4. The two-Judge Bench in Aruna Shanbaug [Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 : (2011) 2 SCC (Civ) 280 : (2011) 2 SCC (Cri) 294] has erred in holding that this Court in Gian Kaur [Gian Kaur v. State of Punjab, (1996) 2 SCC 648 : 1996 SCC (Cri) 374] has approved the decision in Airedale case [Airedale N.H.S. Trust v. Bland, 1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821 (CA & HL)] and that euthanasia could be made lawful only by legislation.
202.5. There is an inherent difference between active euthanasia and passive euthanasia as the former entails a positive affirmative act, while the latter relates to withdrawal of life-support measures or withholding of medical treatment meant for artificially prolonging life.
202.6. In active euthanasia, a specific overt act is done to end the patient’s life whereas in passive euthanasia, something is not done which is necessary for preserving a patient’s life. It is due to this difference that most of the countries across the world have legalised passive euthanasia either by legislation or by judicial interpretation with certain conditions and safeguards.
202.7. Post Aruna Shanbaug [Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 : (2011) 2 SCC (Civ) 280 : (2011) 2 SCC (Cri) 294] , the 241st Report of the Law Commission of India on Passive Euthanasia has also recognised passive euthanasia, but no law has been enacted.
202.8. An inquiry into Common Law jurisdictions reveals that all adults with capacity to consent have the right of self-determination and autonomy. The said rights pave the way for the right to refuse medical treatment which has acclaimed universal recognition. A competent person who has come of age has the right to refuse specific treatment or all treatment or opt for an alternative treatment, even if such decision entails a risk of death. The “Emergency Principle” or the “Principle of Necessity” has to be given effect to only when it is not practicable to obtain the patient’s consent for treatment and his/her life is in danger. But where a patient has already made a valid Advance Directive which is free from reasonable doubt and specifying that he/she does not wish to be treated, then such directive has to be given effect to.
202.9. Right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity. With the passage of time, this Court has expanded the spectrum of Article 21 to include within it the right to live with dignity as component of right to life and liberty.
202.12. Though the sanctity of life has to be kept on the high pedestal yet in cases of terminally ill persons or PVS patients where there is no hope for revival, priority shall be given to the Advance Directive and the right of self-determination.
202.13. In the absence of Advance Directive, the procedure provided for the said category hereinbefore shall be applicable.
202.14. When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest.
- In addition to personal autonomy, other facets of human dignity, namely, “self-expression” and “right to determine” also support the argument that it is the choice of the patient to receive or not to receive treatment.
- The entitlement of each individual to a dignified existence necessitates constitutional recognition of the principle that an individual possessed of a free and competent mental state is entitled to decide whether or not to accept medical treatment. The right of such an individual to refuse medical treatment is unconditional. Neither the law nor the Constitution compel an individual who is competent and able to take decisions, to disclose the reasons for refusing medical treatment nor is such a refusal subject to the supervisory control of an outside entity;”
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;
“If at all any parent has an objection, it has to be necessarily brought before the authorities, and there need not be any vaccination administered to such children whose parents object to the Vaccination”.
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.
The Hon’ble High Court of Delhi had observed that:
“The assumption that children could be vaccinated forcibly or without consent is unsustainable. This Court is of the view that all efforts are required to be made to obtain the decision of the parents before proceeding with the MR campaign. In this regard, it would be apposite to ensure that the consent forms/slips are sent to each and every student. Since the time period for implementing the campaign is short, the response period should be reduced and parents / guardians of students must be requested to respond immediately and, in any case, in not more than three working days. If the consent forms/slips are not returned by the concerned parent, the class teacher must ensure that the said parents are contacted telephonically and the decision of such parent is taken on phone. The concerned teacher ought to keep full records of such decisions received telephonically. In respect of those parents/guardians that neither return the consent slips nor are available telephonically despite efforts by the concerned teacher, their consent can be presumed provided respondent nos. 1 and 2 ensure that full information regarding the commission is provided to all parents.”
“The contention that indication of the side effects and contraindications in the advertisement would discourage parents or guardians from consenting to the MR campaign and, therefore, the same should be avoided, is unmerited. The entire object of issuing advertisements is to ensure that necessary information is available to all parents/guardians in order that they can take an informed decision. The respondents are not only required to indicate the benefits of the MR vaccine but also indicate the side effects or contraindications so that the parents/guardians can take an informed decision whether the vaccine is to be administered to their wards/ children.”
The Hon’ble High Court of Delhi thus passed the following orders:
“MR vaccines will not be administered to those students whose parents / guardians have declined to give their consent. The said vaccination will be administered only to those students whose parents have given their consent either by returning the consent forms or by conforming the same directly to the class teacher/nodal teacher and also to students whose parents/guardians cannot be contacted despite best efforts by the class teacher/nodal teacher and who have otherwise not indicated to the contrary”.
01- Further on the issue of informed consent, the Hon’ble High Court had clearly directed that:
“Directorate of Family Welfare shall issue quarter page advisements in various newspapers as indicated by the respondents… The advertisements shall also indicate that the vaccination shall be administered with Auto Disable Syringes to the eligible children by Auxiliary Nurse Midwifery. The advertisement shall also clearly indicate the side effects and contraindications as may be finalized by the Department of Preventive Medicine, All India Institute of Medical Sciences”.
1.12. In a recent judgment dated 29th September 2020 passed by Hon’ble Karnataka High Court in the matter between A.Varghese Vs. Union of India 2020 SCC OnLineKar 2825, it is ruled as under;
“2. The petition proceeds on the footing that the Standard Operating Procedures / Guidelines prescribed by the State Government as well as the Government of India compel a person suffering from Covid-19 to take treatment only by use of Allopathic drugs.
- At least from the Standard Operating Procedures, which are placed on record, we do not find anything therein which shows that the Government can compel a patient to take only Allopathic drugs. We cannot go into the question whether Covid-19 can be successfully treated either by Ayurvedic drugs or by Allopathic drugs. It is for the experts in the field of medicine to decide that question.”
1.13. Needless to mention here that, a PIL is filed in the Supreme Court of India on 13th 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).
- 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.”
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.”
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”
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…
- 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.”
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)
- 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.
- 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.
- … 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…”
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.”
2.3.Section 188 in The Indian Penal Code reads thus;
“188. Disobedience to order duly promulgated by public servant.—Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation.—It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section.”
2.4. Section 166 in The Indian Penal Code reads thus;
“166. Public servant disobeying law, with intent to cause injury to any person.—Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. Illustration A, being an officer directed by law to take property in execution, in order to satisfy a decree pronounced in Z’s favour by a Court of Justice, knowingly disobeys that direction of law, with the knowledge that he is likely thereby to cause injury to Z. A has committed the offence defined in this section.”
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 23rd 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.
LEGAL NOTICE FOR CONTEMPT OF COURT AGAINST DR. TEDROS ADHANOM GHEBREYESUS, DR. SOUMYA SWAMINATHAN AND THE DIRECTORATE GENERAL OF HEALTH SERVICES (DGHS)
The accused are served legal notice for their attempt to undermine the authority of the Bombay High Court and obstruct the use of Ivermectin for Covid-19 treatment.
On 13th June 2021, Indian Bar Association has served a notice upon Dr.Tedros Adhanom Ghebreyesus, Director General, World Health Organisation, Dr.Soumya Swaminathan, the Chief Scientist at WHO and Prof. (Dr.) Sunil Kumar for contempt of judgment of Bombay High Court.
The Bombay High Court vide its judgment dated 28th May 2021 has already given a green signal for use of Ivermectin for treatment of Covid-19.
Despite this, all the three contemnors have hatched a conspiracy and by spreading misinformation through media, are fuelling confusion amongst doctors by introducing Guidelines allegedly published on 27th May 2021 by DGHS, which are in fact not mandatory and are overruled by the judgment of Bombay High Court dated 28thMay 2021.
The State Government of Goa, in their affidavit filed before Bombay High Court, has specifically pointed out that the WHO advisory against the use of Ivermectin is flawed and the research showed that the Ivermectin is effective for treatment of COVID-19. The Bombay High Court on 28th May 2021, after considering WHO advisory and all other contentions of the rival parties, came to the conclusion that the use of Ivermectin cannot be stopped. The High Court has also taken the note of the guidelines dated 17th May 2021 issued by Indian Council of Medical Research (ICMR), thereby advocating the use of Ivermectin.
Thereafter, a detailed and impactful article was published by the leading newspaper ‘Free Press Journal’ on 6th June 2021 (updated on 14th June 2021) wherein the author has articulated very well as to how the advisories of WHO are dubious.
Surprisingly, in its first, the Directorate of Health Services (DGHA) on 27th May, 2021 announced ‘Comprehensive Guidelines for Management of COVID-19 patients’ which excludes Ivermectin and several popular drugs.
It is worthwhile to note that DGHS is a repository of technical knowledge and is an attached organisation of the Ministry of Health & Family Welfare. The Guidelines/National Protocol have always been issued by the Joint Task Force of All India Institute of Medical Science (AIIMS) and Indian Council for Medical Research (ICMR) under the aegis of Government of India. Moreover, the document containing these impugned Guidelines does mention version/date and does not carry logos of Government of India, ICMR and AIIMS,suggesting lack of consensus between DGHS and the Joint Task Force.
Now, in order to diminish the impact of the article published on 6th June, 2021, the main accused Dr. Soumya Swaminathan hatched a conspiracy and managed some media houses to publish news on 7th June, 2021 for appreciating the overruled guidelines dated 27th May, 2021. Some of these media houses have showed astounding alacrity in publishing news hailing removal of Ivermectin and other drugs, thereby deliberately ignoring the mountains of clinical data on effectiveness of Ivermectin in treatment of COVID-19.
These impugned Guidelines issued by DGHS were circulated first on 7th June 2021, without any mention of the judgment of Bombay High Court dated 28thMay, 2021, which in fact is against the said guidelines, rendering these guidelines as null and void.
As per the judgment of Supreme Court of India, the person responsible for spreading information with object of creating confusion and to obstruct and undermine the judgment of court is liable for punishment under contempt of Court. Sections like 505,192,302, 115,109,409,120(B) of the Indian Penal Code are also attracted against the accused in this case, as their intention was to kill several people to fulfil their ulterior purposes.
The maximum punishment in above cases is death penalty.
The notice states that Dr. Soumya Swaminathan and the WHO are dishonest and have no scientific evidences to back their advisories and such loose statements are issued from time to time, to serve their ulterior purposes.
The relevant para of the notice reads thus;
“53.1. Each time and particularly from following specific instances, it is sufficiently proved that You Notice 1 & 2 do not possess any authentic and scientific evidences;
i) When the earlier Notice was served on Notice 1 on 25.05.2021, she has neither replied to the notice nor has she approached any court of law against us. On the contrary, she chose to delete the controversial tweet advising against the use of Ivermectin for COVID-19;
ii) When the Health Secretary of the State Government of Goa relying on affidavit of Under Secretary of Union of India made their submission on oath before Hon’ble High Court, with specific allegations against WHO that there are reports which have observed that the analysis by WHO on this medicine (IVERMECTIN) is flawed and that the mortality rate is actually much lower if the said medicine is used for early treatment as well as prophylaxis, neither you Notice 1 or 2 chose to produce any proof to counter the said report. As a result, Hon’ble High Court has refused to accept the advisory of WHO.
iii) When All India Institute of Medical Science (AIIMS) had published a statement on 24.05.2021 that there is no evidence to predict the third wave and its effect on children, you Notice 1 did not give any “Evidence” in support of your statement dated 25.05.2021 which was contrary to the said statement of AIIMS.
After you Notice 1 were served with legal notice on 25.05.2021, you feared for being exposed and being summoned in Court of Law and therefore you Notice 1 took a U turn and stated that there is no sufficient evidence to suggest that children would be affected in the third wave.
The agenda of misinformation is also exposed in the statement published in Press Bureau of India on June 8, 2021
“It is a piece of misinformation that subsequent waves of the COVID-19 pandemic are going to cause severe illness in children. There is no data – either from India or globally – to show that children will be seriously infected in subsequent waves.”
53.2. So it is crystal clear that You Notice 1 & 2 do not have scientific evidence except jugglery of words and you are thoroughly intellectually dishonest people who are playing with the lives and livelihood of the common people across the world.
However, in order to expose your intellectual dishonesty to the entire world, this notice is being served, calling for an explanation within 7 days of the receipt of this notice.”
The legal notice also explains the law of damages in India citing recently cases where Court had ordered compensation of Rs. 100 Crores ((USD 13.5 mn) to the aggrieved party, for loss of his reputation. Since the present matter involves death caused due to denial of early treatment resulting in deterioration and death of person, the damages claimed would be much higher that Rs. 100 Crores.
The notice also explains the liability of Dr. Tedros Adhanom Ghebreyesus, Director General of WHO, for his act of commission and omission and also for his implied consent to the conspiracy.
In the similar manner, the DGHS Prof. (Dr.) Sunil Kumar is joined in as co-accused for his complicity in the conspiracy.
The three possible explanations for such an intense opposition to the use of highly promising, well-tolerated off-label medicine as Ivermectin are explained very well in following article:
- “As a generic, Ivermectin is cheap and widely available, which means there would be a lot less money to be made by Big Pharma if it became the go-to early-stage treatment against covid.
- Other pharmaceutical companies are developing their own novel treatments for Covid-19 which would have to compete directly with Ivermectin.
- If approved as a covid-19 treatment, Ivermectin could even threaten the Emergency Use Authorisation granted to covid-19 vaccines.
It’s worth noting that while India’s DGHS has dumped most cheap off-patent treatment options against Covid, including even multivitamins, more expensive patented medicines continue to get the green light. They include Gilead’s prohibitively expensive antiviral Remdesivir, which DGHS continues to recommend for “select moderate/ severe hospitalised COVID-19 patients”, even though “it is only an experimental drug with potential to harm.” It has also authorised the use of the anti-inflammatory medicine to cilizumab, which costs hundreds of dollars a dose.”
Adv. Dipali Ojha
A THUMPING VICTORY FOR INDIAN BAR ASSOCIATION (IBA) AS DR. SOUMYA SWAMINATHAN WENT ON THE BACK FOOT AND DELETED HER CONTROVERSIAL TWEET AFTER IBA SERVED A LEGAL NOTICE UPON HER FOR HER DISINFORMATION CAMPAIGN AGAINST IVERMECTIN
- The recent Judgment of Bombay High Court is a tight slap on World Health Organisation (WHO) and the Opposing Party in Goa
- The High Court of Bombay at Goa has refused to stop the use of Ivermectin for treatment of COVID-19 patients
- The Bombay High Court has upheld the stand of Goa Government, who submitted that the WHO Advisory against the use of Ivermectin for COVID19 is flawed
- The sponsored agenda to prevent the use of Ivermectin and to put the life of citizens in danger was stopped in its tracks, due to firm stand taken by Goa Government and the Bombay High Court.
“3….In addition, some of the petitioners have flagged the issue of the approval by the State of Goa of Ivermectin for its therapeutic or prophylactic uses. It is submitted that this particular medicine does not have the approval of either our DCGI or international regulatory authorities. It is submitted that in fact WHO has issued an advisory against the use of Ivermectin for Covid related treatment.”
The main Respondent i.e. State Government of Goa, in their reply, pointed out to the Court that the advisory of WHO against Ivermectin is not reliable and is flawed.
In the meantime, Indian Bar Association has issued legal notice on May 25, 2021 to Dr. Soumya Swaminathan, the Chief Scientist at the WHO, for her tweet against the use of Ivermectin.
In the said notice, the Indian Bar Association has exposed the malafides of Dr. Soumya Swaminathan for suppressing the authentic data of Front Line Covid-19 Critical Care Alliance (FLCCC) and the British Ivermectin Recommendation Development Panel(BIRD).
The Indian Bar Association has warned action under section 302 etc. of the Indian Penal Code against Dr. Soumya Swaminathan& others, for murder of each person dying due to obstruction in treatment of COVID-19 patient effectively by Ivermectin. Punishment under section 302 of the Indian Penal Code is death penalty or life imprisonment.
After receiving the said notice, Dr. Soumya Swaminathanwent on the back foot and deleted her tweet.
This has proved the hollowness of the WHO’s recommendation against Ivermectin for COVID-19.
The dishonesty of WHO and the act of Dr. Soumya Swaminathandeleting her contentious tweet was witnessed by netizens across the world, as the news got a wide coverage on social media. By deleting the tweet, Dr. Soumya Swaminathan has proved her malafide intentions.
The action of IBA serving a legal notice upon Dr. Soumya Swaminathan, has garnered immense appreciation and widespread support from several netizens including doctors, activists, journalists, political leaders and media groups.
Moreover, the judgment of Bombay High Court at Goa dated May 28, 2021 proved to be icing on the cake for Ivermectin. While the matter came up for hearing before the Bombay High Court at Goa, the Court refused to accept the advisory of WHO. The Court has upheld the Guidelines of Indian Council of Medical Research (ICMR). Ivermectin has been allowed for treatment of COVID-19..
The judgment dated May 28, 2021 reads thus;
“13. As regards the use of Ivermectin, the issue raised by the petitioner in Writ Petition No.1216 of 2021 concerns mainly its prophylactic use. As for its therapeutic use, it is nobody’s case that the medicine has not been included by ICMR for Covid-19 treatment protocol. Though the expert committee of the State, in its decision dated 13/05/2021, has recommended even prophylactic use of Ivermectin, from the affidavit filed by the State its the Additional Secretary (Health) what emerges is that the State has, for the present, decided that the medicine, i.e. Ivermectin, would be given to all suspected and symptomatic patients and provided in the kit to be supplied to positive patients in home isolation. It does not appear that as of now the State has been promoting prophylactic use of these medicines. In case however the State does so in future, it will be open for the petitioners to raise appropriate objections and the matter in that case will be dealt with by this Court in its further orders to be passed in Writ Petition No. 1216 of 2021.”
The Health Minister of Goa has expressed their gratitude to the High Court by posting the following message on Facebook on May 28, 2021:
“We are grateful to the Hon’ble High Court for accepting Govt. of Goa’s decision to use Ivermectin for treating Covid-19.This is a crucial step taken by the Govt. of Goa on advice of our expert team of doctors with an aim to help us in reducing the infectivity rate and control surge of Covid-19 cases. Our team is working hard to ensure we are efficiently able to battle the pandemic.”
All those who were opposing the use of Ivermectin on the basis of Dr. Soumya Swaminathan’s tweet have fallen flat on their face after she deleted her tweet.
However, deleting the tweet will not save Dr. Soumya Swaminathan and her associates from the criminal prosecution which is to be launched by the citizens with active support from the Indian Bar Association.