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Withdraw Ban On Unvaccinated Using Local Train : Bombay High Court Tells Maharashtra Govt
Sharmeen Hakim
21 Feb 2022 6:27 PM IST
The Bombay High Court suggested the Maharashtra Government withdraw an August 2021 circular, and allow unvaccinated persons to travel by the local train considering the Covid-19 situation had considerably improved.It directed the State to inform the court by tomorrow if it is willing to withdraw the circular and observed that prima facie due process was not followed before passing the...
The Bombay High Court suggested the Maharashtra Government withdraw an August 2021 circular, and allow unvaccinated persons to travel by the local train considering the Covid-19 situation had considerably improved.
It directed the State to inform the court by tomorrow if it is willing to withdraw the circular and observed that prima facie due process was not followed before passing the order.
The bench of CJ Datta and Justice MS Karnik was hearing two PILs seeking to set aside two circulars, including one issued by then Chief Secretary - Sitaram Kunte - prohibiting those who haven't taken both doses of Covid-19 vaccine from travelling by the local train.
"The Chief Secretary has to withdraw the order. Whatever has been done by his predecessor (Sitaram Kunte) is not in accordance with law. Withdraw this decision and allow people. Now the Covid situation has improved. Maharashtra handled it beautifully. Why are you inviting a bad name?" the CJ said in response to the State's counsel's suggestion of taking a fresh decision.
During the previous hearing the State told the court that minutes or records of the meeting of the State Executive Committee (SEC) under the Disaster Management (DM) Act, have not been maintained. The Chief Secretary is the Chairman of this committee.
The State therefore sought more time to place on record the material or data on which the Chief Secretary decided to impose the curbs.
On Monday, Senior Advocate Anil Anturkar submitted certain documents by the State Task Force in which it was mentioned that curbs on people could be imposed by August 15, 2021.
But the Chief Justice objected to submission for two reasons. The CJ observed that the recommendation was regarding people travelling by train from other states and not for local train travel. Moreover, there seemed to be little to show what material the CS based his decision on or specify the emergency to take this decision without the SEC.
According to the Disaster Management Act and Rule 12(2) thereunder, the CS could have exercised his powers to impose such a curb without the SEC, only after he demonstrates extreme urgency.
The bench pointed out that the August, 2021 circular did not specify any such emergency.
The petitions are filed by activist Feroze Mithiborewala and Yohan Tengra, member of the Awaken India Movement.
They alleged that the Circulars discriminate against those who haven't taken the vaccine and are thus violative of Article 14 (equality ), 19 (freedom of speech and expression) and 21 (right to life) of the Constitution.
The plea filed by Activist Feroze Mithiborwala further avered that vaccination is completely voluntary according to the Centre's answer as given in Lok Sabha on 19th March 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".
In this background, they submitted that "any direct or indirect method to coerce the citizens to get vaccinated is not only illegal but violative of fundamental rights…"
Reliance was placed on various High Court Judgments from states like Guwahati, Meghalaya, Mizoram, Arunachal Pradesh & Nagaland, which have ruled that vaccination cannot be made mandatory as a condition to accessing jobs, travel, educational institutions, public places.
The plea added that prior to the Covid-19 crisis, the Delhi and Kerala High Courts have both ruled that vaccines cannot be made mandatory. Moreover, a person has a fundamental right to choose medication as per his choice, states the petition.
The Union Government represented by Additional Solicitor General Anil Singh had earlier submitted that Union did not have a policy discriminating against the unvaccinated. Therefore that field remained unoccupied and the State was not barred from taking a decision.
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