SHILLONG, July 4: The Gauhati High Court has held that a recent SOP issued by Mizoram Government, stating that the restriction placed on the unvaccinated persons debarring them from leaving their houses and preventing them from earning their livelihood, is arbitrary and in violation of Article 14, 19 and 21.
“There can be any number of reasons for a person to leave their house, for example, it could be for the purpose of procuring essential supplies, like foodstuff, medicines, attending to their near and dear/sick ones etc. However, the said clause has virtually put them under house arrest in violation of Article 21 of the Constitution of India, while persons who have been given the first dose of vaccine are allowed to leave their houses/compounds. Thus, on the ground of discrimination alone, Clause 5(2) is arbitrary. When the SOP requires all persons to cover their faces and to adhere to COVID protocols as mentioned in the above SOP, there should not be any discrimination against unvaccinated persons,” observed a division bench comprising of Justice Michael Zothankhum and Justice Nelson Sailo.
“There is discrimination at large, as persons who have been vaccinated with the first dose of the vaccine are allowed to earn their livelihood, but not the unvaccinated persons. There is nothing to show that vaccinated persons (first dose) cannot be infected with the coronavirus or that they cannot be spreaders. If the vaccinated person and unvaccinated person cover their face with a mask, as per the COVID behaviour protocols laid down by the state respondents, there is no reason to discriminate only against unvaccinated persons,” the court further observed.
The court also referred to the case wherein the State of Meghalaya, through various orders of the Deputy Commissioners, had made it mandatory for shopkeepers, vendors, local taxi drivers and others to get themselves vaccinated before they could resume their businesses.
“The Division Bench of the Meghalaya High Court in its order dated June 23, 2021 held that vaccination cannot be mandatory and non-vaccination can never affect a major fundamental right, i.e. right to life, personal liberty and livelihood, especially when there exists no reasonable nexus between vaccination and prohibition of continuance of occupation and/or profession.”
The development came in terms of challenge to the SOP issues by the Mizoram Government requiring all, persons to be vaccinated or else they would not be allowed to leave their houses to procure or obtain essential items/goods or earn their livelihood by working in shops/stores, driving public or commercial transport vehicles etc.
Analysing the SOP, the Court said that even persons who have been vaccinated can still be infected with the COVID virus and spread the virus to others. Since vaccinated and unvaccinated persons can both be infected by the COVID virus and if they can both be spreaders of the virus, the restriction placed only upon the un-vaccinated persons, debarring them from earning their livelihood or leaving their houses to obtain essential items is unjustified, grossly unreasonable and arbitrary, the court observed.
“The restrictions placed upon unvaccinated individuals vis-à-vis vaccinated individuals in terms of the SOP are arbitrary and not in consonance with the provisions of Article 14, 19 & 21 of the Constitution. The State respondents are accordingly directed to issue a corrigendum of the SOP at the earliest incorporating the above directions,” the Court held.
The court also referred to the Meghalaya High Court ruling that though vaccination is an absolute necessity, “a harmonious and purposive construction of the provisions of law and the principles of equity, good conscience and justice reveals that mandatory or forceful vaccination does not find any force in law leading to such acts being liable to be declared ultra vires ab initio.”
The matter has been listed for hearing on July 14.