'Citizens Can't Be Intolerant To the Extent That They Cannot Withstand Printing Prime Minister's Photograph On A Certificate' : Kerala High Court

The Kerala High Court while dismissing an appeal challenging the Single Judge's rejection of the plea against Prime Minister's photograph being affixed on Covid-19 vaccination certificates issued to citizens, observed that an individual fundamental right is subservient to the larger public interest. 

However, the cost imposed on the appellant was reduced from Rs. One Lakh to Rs. 25,000.

A Division Bench comprising Chief Justice S. Manikumar and Justice Shaji P. Chaly maintained that inscriptions and the photograph of the Prime Minister would not interfere with the freedom of speech and expression conferred to a citizen under Article 19(1)(a) of the Constitution:

"In our considered opinion, the printing of a photograph, or inscriptions contained in the certificate would not interfere with the fundamental rights of appellant since the photograph and the inscriptions are made apparently with the intention of gathering the attention of the citizens at large and to motivate the citizens to come forward for the administration of the vaccine. In our view, such an action was required from the side of the Government of India since Covid-19 vaccination was not made compulsory and therefore, in order to protect the larger interest of the community as such, motivation in order to instill confidence in the public, was largely required."

It added that a citizen is not entitled to ask the Centre to remove such inscriptions and photograph from the certificate exercising rights under Article 19 because such a claim is never a fundamental right envisaged thereunder. This was particularly so since such a course was adopted to motivate the people to co-operate with the Government, and thereby to ensure that maximum vaccination to avoid fatality.

"We are at a loss to understand how the fundamental right guaranteed under Article 19(1)(a) affects the appellant merely because a photograph is printed and inscriptions are made in the certificate, so as to achieve and attain a common target. In our considered view it would never interfere with the freedom of speech and expression guaranteed to a citizen within the framework of the Constitution of India. The rights guaranteed there under cannot be treated so wafer thin and so peripheral and hence citizens cannot be intolerant to the extent that they cannot withstand printing of the photograph of the Prime Minister in a certificate. Which thus means, merely because there is a photograph and an inscription in the certificate, the right of the citizen to criticize the same in accordance with law, conferred under Article 19 (1) (a) of the Constitution is not interfered with."

The Court further added that printing of the Prime Minister's photograph and the inscriptions on the certificate were methods adopted by the Centre to win public confidence to ensure that the citizens get vaccinated, just like press releases were issued by the concerned Ministry, apart from advertising and other awareness programmes, to achieve the target of acquiring herd immunity in the larger interest of the citizens.

Moreover, the Bench asserted that once an elected body comes to power with the mandate of the voters, it is entitled to carry on with administration of the nation by making policies that are suitable, convenient and adaptable to the nation, bearing in mind the larger public interest.

"It is not the fundamental right of an individual that concerns the Government of India, but the fundamental rights enjoyed by the larger public, is the concern in a situation like the instant COVID-19 Pandemic. An individual right on the basis of the guaranteed fundamental right under Part III of the Constitution of India is subservient to the larger public interest when any volatile situation has engulfed the nation and the entire world."

The Court also pointed out that the directive principles of the State Policy and the fundamental duties in the Constitution entrust the Union and States with the duty to protect the health, welfare and safety of the public collectively, rather than being concerned with the individual fundamental rights beyond necessity.

Additionally, the Judges noted that the Centre was vested with powers under Article 73 of the Constitution to issue executive orders in matters of administration of the nation for the common good by adopting appropriate policies to meet with the necessities of time, without infringing the fundamental and constitutional rights and also the rights conferred on the citizens under various statutes and other enactments.

"This we say because the appellant has raised the prime contention that the photograph and inscriptions contained in the Covid-19 Vaccination Certificate is without authority of law. In fact, Article 73 of the Constitution of India is incorporated in the Constitution with the specific purpose of conferring power on the Government of India to discharge its functions when the Government is not guided by a statutory provision to do a particular thing." 

Further, it was observed by the Bench that an elected Government functioning in a democratic set up has its own operational freedom to discharge its functions without seriously rupturing a citizen's fundamental rights. 

The Court found it to be an effort made by the Centre to discharge its obligations, duties and functions by capturing the attention and cooperation of the citizens"

"Merely because the appellant has paid for the vaccine, that will not take away the right of the Government to make necessary inscriptions and affixes with the hopeful intention of securing public attention in order to achieve the target of complete vaccination for the entire citizens of the country." 

Upon persusing the impugned judgment, the Division Bench opined that all contentions, factual and legal circumstances put forth by the appellant were taken into account by the the Single Judge before arriving at its decision. Therefore, the Bench had no hesitation to hold that the appellant did not make out any case to interfere with the said judgment.

On another note, it was pointed out by the Court that when an official act is done by the Government of India, incorporating the photograph of the Prime Minister and inscriptions, it has to legally presume that this was done in accordance with law. Therefore the onus to prove otherwise was on the appellant, which burden he had failed to discharge.

"Above all, we do not think that the Prime Minister of India requires any more advertisement than occupying the office of the Prime Minister of India and thereby making his presence in several hundreds of platforms within the country and abroad. That said, it is a fallacious contention that the attempt is to attract the electorate, because the vaccination certificate is downloaded by the individual and kept with him for his personal purposes, and thinking so it would not fetch any larger publicity, than confining to the particular individual. This privacy is secured by virtue of the guidelines issued by the Ministry of health and family welfare for integration of Co-WIN with third-party applications, which would enable citizens to access their certificates anywhere any time only through the Co- WIN portal."

Holding so, the Court rule that there was no question of any recurring advertisement charges of whatsoever nature as contended by appellant and the exhibition of the image of the Prime Minister is not a message "conveyed and paid for" by the Government for placement in mass media ( Co-WIN portal), and no public fund is involved other than the expenses for the maintenance of the portal.

Cost 

The Single Judge had also imposed a whopping cost of 1 lakh on the appellant by the impugned order. The Division Bench took the view that a litigant should also be watchful and cautious enough to identify before filing the litigation, as to whether the litigation has got any factual and legal foundation. 

"No citizen of the country is expected to approach a constitutional court with litigation, without understanding the true implications, the spirit, and the true and correct intent of the fundamental rights guaranteed under the Constitution of India." 

Although it did not find that the cost imposed being illegal or arbitrary, since the appellant submitted that he was only attempting to put forth a bona fide cause, the cost was reduced. 

"Whatever that be, taking into account the present pandemic situation and consequential economic and other crisis prevailing in the community, we are of the opinion that the cost can be reduced to an amount of Rs.25,000/-."

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