Approach High Courts Against Vaccine Mandates Of States : Supreme Court Suggests To Petitioner

"Let us tell you something, after going through all the papers, all the instances which you are bringing to notice, it might not be possible for us to decide those. Because there are numerous situations that can be brought to this Court, we cannot even envisage so many situations pertaining to vaccine mandates. You are talking about employment, but there are so many other situations, not only pertaining to employment. People will come complaining about various things that we cannot handle. We will decide your main case and specific cases can be dealt with by the High Courts."

A Bench comprising Justices L. Nagewara Rao and B.R. Gavai was hearing a plea seeking public disclosure of vaccine clinical trial data and post vaccination data, as is required by International medical norms. The petition had also sought declaration that vaccine mandates, in any manner whatsoever, even by making it a precondition for accessing any benefits or services is violative of rights of citizens and is unconstitutional. Later, the Petitioner, Dr. Jacob Puliyel, had filed an application assailing specific vaccine mandates imposed by State Governments of Madhya Pradesh, Maharashtra and Tamil Nadu, which led to people losing jobs, ration benefits etc.

At the outset, Advocate, Mr. Prashant Bhushan appearing on behalf of the Petitioner submitted that -

"There are two issues - one is release of data on vaccines and second is issue of vaccine mandates issued by states and other authorities…People are losing their jobs, rations, not being able to move about freely because of this."

Apprising Mr. Bhushan about the difficulties in deciding the challenges against specific vaccine mandates pointed out in the application filed by the Petitioner, the Bench decided to list the main Writ Petition for consideration. In view of the same, the Bench asked -

"How much time will you take, Mr. Bhushan, to argue your matter?"

Mr. Bhushan responded, "2 hours."

Senior Advocate, Mr. Colin Gonsalves appearing for the petition is a connected matter(relating to vaccine mandates against children) informed the Bench,

"The second matter is dealing with deaths and adverse effects, monitoring and so on. I am ready and I'll take one hour."

When the Solicitor General of India, Mr. Tushar Mehta was asked, he said that he would require 4 hours to put forth his submissions.

Mr. Bhushan briefly argued that there are catena of judgments of the Apex Court to suggest that one could exercise their fundamental right and chose not to get vaccinated. Mandates could only be issued by authorities if there is clear evidence to suggest that by not taking vaccines one exposes others to a greater threat.

"My argument is whether I take some medicine or a vaccine for my own sake is my fundamental right which has been laid down by several judgments of the SC including Common Cause. Mandates can be issued, if in the absence of the vaccine I pose a greater hazard to other people, not to myself because for myself I'll have to decide. Mandates can only be issued if there is clear evidence that my not taking the vaccine makes a greater danger to other people than after taking the vaccine."

He further submitted that there is evidence to show that almost 90% of the country's population have been exposed to the virus and once a person gets infected they have better protection than what they would have after taking the vaccine.

"There is overwhelming evidence that 90% people in the country have had the virus because they are seropositive. Now, there is indefeasible evidence that once you have the infection your protection is far superior to that of the vaccine."

Mr. Bhushan also averred that there is clear evidence to show that the vaccines cannot prevent one from getting infected or stop the virus from spreading, but he conceded that the vaccine might prevent the condition of an individual, who is infected, from getting serious. He argued that getting vaccinated is therefore a choice that an individual is to make.

"There is also overwhelming evidence to show that these vaccines do not stop from spreading or getting infection, they prevent from getting serious illness. I accept that they might prevent you from getting seriously ill, but that is a matter of an individual to weigh their pros and cons."

Observing that the Solicitor General was interrupting Mr. Bhushan from time to time, the Bench asked him not to do so. Mr. Mehta submitted that his limited concern is that such arguments might create vaccine hesitancy in the country.

The Bench stated that a date would be fixed and the matter would be taken up for final hearing.

[Case Title: Jacob Puliyel v UOI, WP(C) 607/2021]