Breaking- "Restriction On Unvaccinated Persons For Leaving From Their Houses, Debarring Them From Earning Livelihood,Violative Of Art 14,19 and 21": Gauhati High Court

The Gauhati High Court on Friday held that the SOP issued by the State of Mizoram stating that the restriction placed on the unvaccinated persons debarring them from earning their livelihood, leaving thereby their houses to obtain essential items is arbitrary and illegal to Art. 14 and 21.

A division bench comprising of Justice Michael Zothankhum and Justice Nelson Sailo observed thus:

"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 food-stuff, 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 un-vaccinated persons, as the Covid protocols are also applicable to un-vaccinated persons."

Furthermore, it said:

"With respect to Clause 6(1) and 6(5) of the SOP, 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 un-vaccinated persons. There is nothing to show that vaccinated persons (first dose) cannot be infected with the corona virus or that they cannot be spreaders. If the vaccinated person and un-vaccinated person cover their face with a mask,as per the covid behavior protocols laid down by the State respondents, there is no reason to discriminate only against un-vaccinated persons."

The development came in terms of challenge to the SOP issues by the State 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/commercial transport vehicles etc. 

Analysing the aforesaid SOP, the Court observed thus:

"It has been brought to our notice that even persons who have been vaccinated can still be infected with the covid virus, which would in turn imply that vaccinated persons who are covid positive, can also spread the said virus to others. It is not the case of the State respondents that vaccinated persons cannot be infected with the covid virus or are incapable of spreading the virus. Thus, even a vaccinated infected covid person can be a super- spreader. If vaccinated and un-vaccinated persons can 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."

"Due to the above reasons, we find that Clause 6(1) and 6(5) of the SOP are also violative of Article 14 of the Constitution, especially when achieving the target for vaccinating the targeted population may take many more months, in which case unvaccinated persons would be deprived of their right to livelihood, which would in turn violate their right to life, which are guaranteed under Article 21 of the Constitution." The Court said.

Stating that there is an embargo placed on the un-vaccinated individuals from being employed in shops and driving public/commercials vehicles, the Court observed that a restriction cannot be arbitrary or of a nature that goes beyond the requirement of the interest of the general public.

"Though no general pattern or a fixed principle can be laid down so as to be universal in application, as conditions may vary from case to case, keeping in view the prevailing conditions and surroundings circumstances, the requirement of Article 19(6) of the Constitution is that the restriction has to be made in the form of a law and not by way of an executive instruction." The Court said.

"The SOP provides that vaccinated persons who are employed in shops/stores and to drive transport/commercial vehicles should wear mask and adhere to all proper covid protocols. If an un-vaccinated person is to be made to adhere to the same protocols, there can be no difference in the work of a vaccinated or un-vaccinated person. As such, the restriction placed upon un-vaccinated persons only due to non-vaccination is unreasonable and arbitrary." 

"In view of the reasons stated above, we hold that the restrictions placed upon un- vaccinated individuals vis-à-vis vaccinated individuals in terms of Clause 5(2), 6(1), 6(5),Serial No. 31 & 42 of Annexure-3 of the SOP dated 29.06.2021 are arbitrary and not in consonance with the provisions of Article 14,19 & 21 of the Constitution. The said impugned clauses are interfered with, to the extent that the allowances available and given to vaccinated persons in the above clauses shall also be made equally applicable to un- vaccinated persons. The State respondents are accordingly directed to issue a corrigendum of the SOP dated 29.06.2021 at the earliest incorporating the above directions." The Court held.

The Court will now hear the matter on 14 July.

Title: In Re Dinthar Incident Aizawl VERSUS State of Mizoram and 11 Ors Aizawl

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