Discrimination Based On Vaccination Status Is Violative of Fundamental Rights: Plea in Rajasthan High Court

A Writ Petition has been filed in the Rajasthan High Court seeking to quash an order of the State Government restricting access to indoor sports, gyms, restaurants and other public places to people who have received at least one vaccination dose. The order also bars the operation of city busses and other markets and establishments based on vaccination status. The petitioner, a social activist, expresses concern that the impugned order makes the vaccination process mandatory and discriminates against similarly placed people based on the vaccination status.

The petition states that the order is arbitrary and discriminatory, violating Article 14, 19(1)(g) and 21 of the Constitution of India, 1950. It states,

"The impugned order by making COVID19 vaccination mandatory in nature fails to create a level playing field for all as it ignores ground realities such as accessibility to vaccine centres, technical barriers in registration on CoWIN portal, pre-medical conditions (allergies), vaccination for specially-abled people etc., and affords no exemptions/ relaxations to those unable to comply with the same due to reasons mentioned above."

The petitioner, represented by Advocate Nishchay Nigam & Himanshu Kala, states that the order is founded on the unreasonable classification, i.e., the status of COVID-19 vaccination, without any rational nexus imposing an embargo on the individual's right of the continuance of occupation and/or profession and hence on the right to life. Thus, the impugned order blatantly violates Article 14 of the Constitution of India.

It alleges colourable exercise of power by the State of Rajasthan as it attempts to curtail the fundamental rights of the citizens indirectly, something which cannot be infringed directly. By incentivising the vaccination process, the State is awarding what is already guaranteed by the Constitution.

Furthermore, the petition emphasises that Clause (3) & (5) of the impugned order coerces the businesses and business owners to meet the arbitrary and baseless parameter requiring 60% of the staff to be vaccinated to operate for additional hours. It discriminates amongst the citizens based on their vaccination status, limiting their right to practise any profession or to carry on any occupation, trade or business guaranteed under Article 19(1)(g) of the Constitution of India, 1950. It notes,

"It is pertinent to note that there has been no legal mandate whatsoever with regard to coercive or mandatory COVID19 vaccination drive that can prohibit or take away the livelihood of a citizen on that ground except according to the procedure established by law."

The petition makes a case for the right of self-determination and autonomy in the case of medical care decisions by referring to Common Cause v. Union of India 2018.

Coercive Mandate For Compulsory COVID-19 Vaccination?

The petition refers to a judgement by the High Court of Meghalaya acknowledging the voluntary nature of COVID19 vaccination, observing that,

"A harmonious and purposive construction of the provisions of law and principles of equity, good conscience and justice reveals that mandatory or forceful COVID19 vaccination does not find any force in law leading to such acts being liable to be declared ultra vires ab initio."

It also mentions that vaccination has been defined as "VOLUNTARY" in the Frequently Asked Questions [FAQ] published by the Ministry of Health and Family Welfare, Government of India, and the same has been reiterated in an RTI reply by the Central Government.

The petition also notes that the impugned order ignores the fact that Rajasthan has been facing an acute shortage of vaccines, as raised by the Chief Minister of Rajasthan in an open letter to the Prime Minister. Therefore, a compulsion over-vaccination amidst vaccine shortage and unavailability is ill-founded, impractical and arbitrary in law and is thus liable to be quashed on this very ground.

It further takes into account the requirements of imposing reasonable restrictions 'in the interest of general public' under Article 19(6), stating that the State lacks the power to issue executive instructions, discriminating against persons concerning their right to liberty, livelihood and life, violating the fundamental rights of the citizens, which the Constitution protects.

"The requirement of Article 19(6) of the Constitution is that the restriction has to be made in the form of law and not by way of a 29 executive instruction. Hence the impugned order dated 26.06.2021, issued by the Respondent, is liable to be quashed on this ground alone", the petition states.

Earlier, the Madras High Court expressed its reservation over 'right to refuse' Covid-19 vaccine as its administration involves the larger interest of 'public health'.

Title: Ms. Jyotsna Rathore v. State of Rajasthan

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