If Vaccine Mandates Are Not Proportionate To Personal Liberty, We Will Go Into It : Supreme Court

Appearing before the Bench comprising Justices L. Nageshwara Rao and B.R. Gavai, Mr. Prashant Bhushan submitted that the issue of vaccine mandates have become all the more serious given that States like Tamil Nadu and Maharashtra had issued mandates that those who are unvaccinated cannot come out of their respective houses; Delhi has issued an order stating that no Government servant will be permitted to work and will be treated as if he is on leave without pay, if unvaccinated; and Madhya Pradesh has issued orders that it would not provide ration to unvaccinated persons. Agreeing to look into the issues raised by Mr. Bhushan, the Court felt it was necessary to challenge specific mandates and implead the States whose orders are challenged as parties for effective adjudication.

At the outset Mr. Bhushan apprised the Court that the Central Government had filed their Counter Affidavit in the morning. The Bench concerned that they do not have a copy of the Counter remarked:

"We were waiting for the Affidavit...So we don't have the benefit of reading the affidavits at least."

Apologising for the delay in filing the Counter Affidavit, Solicitor General, Mr. Tushar Mehta, appearing on behalf of the Central Government, stated, "We could finalise it a little late, Milords. My apologies to your lordship."

Mr. Bhushan referred to the mandates of the Governments of Tamil Nadu, Maharashtra, Delhi and Madhya Pradesh as elucidated above to suggest the gravity of the issue.

The Bench stated, "If orders are passed like this then you have to challenge those orders. We agree with you that if the vaccine mandates are not proportionate to personal liberty we will go into it. But, generally we cannot give any direction. Why don't you challenge these orders?"

Attempting to provide justification for not challenging individual vaccination mandates, Mr. Bhushan submitted -

"Everyday new mandates are being issued by different States...The Central Govt. has said very very clearly in the last para at pg 57 of their Affidavit as well as their RTI reply. The Central Government has not mandated COVID vaccines to be administered mandatorily at this stage."

The Bench clarified that the mandates of the States brought to the notice of the Court by Mr. Bhushan needs to be looked into and therefore, it is urging Mr. Bhushan to challenge the said orders.

The Bench added -

"In any case, if you are challenging the mandates issued by certain States, would the States not be required to be heard?"

Pointing out the difficulty, Mr. Bhushan argued that the Central Government in its affidavit had accepted that it had not mandated COVID vaccination.

However, the Bench asserted to implead the concerned States as parties. Bowing down to the Court's suggestion, Mr. Bhushan sought its permission to implead the concerned States.

Explaining the Court's position in this regard, Justice Rao stated:

"Mr. Bhushan, appreciate what I am saying. If you bring it to the notice of the Court that this is what they are doing, you point out the proportionality of the order whether it falls within the vaccine mandate...Generally it is not possible for us to decide in abstract...Make the States as parties."

Agreeing to implead, Mr. Bhushan sought permission to make a submission -

"The US Court of Appeals has struck down the vaccine mandate issued by the US Govt...Now, the Meghalaya High Court has also struck down a mandate stating that you cannot open shops."

With respect to the US Fifth Circuit order, Justice Rao clarified that the matters filed before various courts have now been transferred to the Sixth Circuit and the modification of order would also be taken by the Sixth Circuit sometime in December.

The Solicitor General appealed to the Court that -

"Your Lordships as the constitutional court of the nation please bear in mind any attempt by vested interest groups which may result in hesitancy, which the nation has come out with difficulty may be avoided. It is Your Lordships concern, I am sure, that crores of people are protecting themselves by this vaccine not only in India, but across the world...anything said even orally will have severe adverse effects. "

The Bench reminded the Solicitor General that when the notice was issued, the Court made it very clear that it would not encourage vaccine hesitancy, but it opined that the concerns raised by the Petitioners are to be addressed.

The matter was adjourned to 13th December, 2021.

The bench was hearing a writ petition filed by Dr.Jacob Puliyel,a former member of National Technical Advisory Group of Immunization, seeking disclosure of vaccine efficacy data and restrictions of coercive vaccine mandates. The Court had issued notice on the petition on August 9 observing that the certain seminal issues are raised; however, the Court also clarified that it does not want to add to vaccine hesitancy.

Case : Dr.Jacob Puliyel vs Union of India |WP(c) 607/2021

Click Here To Read/Download Order