THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

WP(C)/37/2020

In Re Dinthar Incident

VERSUS

State of Mizoram and 11 Ors

Heard by Hon’ble Mr Justice Michael Zothankhuma & Hon’ble Justice Mr Nelson Sailo

The court observed that 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 an executive instruction. The preamble of the Act clearly states that it is an Act to provide effective management of the disasters and for matters connected therewith or incidental thereto. There is nothing discernible in the Act, to show that the said Act has been made for imposing any restriction on the exercise of the rights conferred by Article 19 of the Constitution.

Facts of the case:

In light of the partial lifting of the state’s present restrictions, the Chief Secretary of Mizoram has issued an Order dated June 29, 2021, along with a Standard Operating Procedure (SOP) to be implemented beginning at 4:00 a.m. on June 30, 2021, and ending at midnight on July 15, 2021. The precise restrictions that have been brought to this Court’s attention are in relation to Clause 5(2), which effectively prevents non-vaccinated individuals from leaving their house/compound.

Non-vaccinated individuals are prohibited from working in shops, stores, performing any work, or operating public transportation or commercial vehicles, according to Clauses 6(1) and 6(5).

The writ petition has been filed against the notification issued by the Deputy Commissioner on dated 29.06.2021.

Contentions of the parties:

Respondent:

In support of the validity of Clauses 5(2), 6(1), and 6(5) of the SOP dated 29.06.2021, the learned Additional Advocate General has submitted a letter dated 01.07.2021 from the Under Secretary to the Government of Mizoram, Disaster Management & Rehabilitation Department, stating that the State Government can make restrictions under the Disaster Management Act, 2005, curtailing a variety of activities. In the same letter dated July 1, 2021, it is also noted that unless shops, drivers, and their employees are vaccinated, they may become a super-spreader of the covid virus. The State Government would prefer to keep the above clauses in question in the SOP dated 29.06.2021, according to the learned Additional Advocate General, because the constraints imposed are fair restrictions implemented in the public interest.

The learned Additional Advocate General also contends that the State Government has made arrangements for free mass vaccination of the people of the State, which is currently underway. He claims that the first dose of Covishield immunisation has been administered to 5,19,452 people (or 67 per cent of those who are eligible) as of today. He claims that the Covishield vaccination (first dose) target is 7,75,106 people.

The State Government would prefer to keep the above clauses in question in the SOP dated 29.06.2021, according to the learned Additional Advocate General, because the constraints imposed are appropriate restrictions placed in the broader public interest.

Petitioner:

The court pointed out that Article 19(6) of the Constitution stipulates that the restriction must be enacted in the form of legislation rather than an executive order. The Act’s preamble indicates unequivocally that it is an act to provide effective disaster management and for matters related with or incidental thereto. There is nothing in the Act that indicates that it was enacted to impose any limitations on the enjoyment of the rights granted by Article 19 of the Constitution.

Observations and Judgements:

Observations:

According to Clause 5(2) of the SOP dated 29.06.2021, unvaccinated people are not permitted to leave their homes in the presence of vaccinated people (first dose). According to the learned Additional Advocate General’s submission, 33 per cent of the targeted people have yet to be vaccinated. A person may leave their home for a variety of reasons, including the need to obtain critical supplies such as food and medicine, as well as to care for family members or sick relatives.

However, the clause has effectively placed them under house arrest, in violation of Article 21 of the Indian Constitution, whereas those who have received the first dosage of vaccine are free to leave their homes/compounds. Clause 5(2) is so arbitrary on the basis of discrimination alone. When the SOP mandates everyone to cover their faces and follow the Covid protocols as outlined in the preceding SOP, there should be no prejudice against unvaccinated people because the Covid protocols apply to everyone.

There is widespread discrimination under Clauses 6(1) and 6(5) of the SOP, as individuals who have received the first dose of the vaccination are allowed to work while those who have are not. There is no evidence that persons who have received the first dose of the corona vaccination are immune to infection or dissemination of the virus. If both vaccinated and unvaccinated people wear masks, as required by the State respondents’ covid behaviour standards, there is no need to discriminate primarily against unvaccinated people.

It has been brought to our attention that even those who have been vaccinated can become infected with the covid virus, implying that those who have been vaccinated yet are covid positive can spread the virus to others. The State answers do not contend that vaccinated people cannot become infected with the covid virus or that they are incapable of disseminating it. As a result, even a diseased covid who has been vaccinated can be a superspreader. If both vaccinated and unvaccinated people can be infected by the covid virus and both can spread it, the restriction imposed solely on the unvaccinated people, prohibiting them from working or leaving their homes to buy basic commodities, is unwarranted, irrational, and arbitrary. As a result, the learned Additional Advocate General’s argument that the limits imposed on unvaccinated people in comparison to vaccinated people are acceptable falls flat.

For the reasons stated above, we believe that Clauses 6(1) and 6(5) of the SOP are also in violation of Article 14 of the Constitution, particularly since 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 is assured under Article 21 of the Constitution.

Though vaccination is an absolute necessity, the court noted that the Meghalaya High Court Division Bench in Registrar General, High Court of Meghalaya Vs. State of Meghalaya, PIL No. 6/2021 held that “a harmonious and purposeful construction of the provisions of law and the principles of equity, good conscience, and justice reveals that mandatory or forceful vaccination does not find any justification.”

The problem at hand is that unvaccinated people are barred from working in stores and driving public or commercial vehicles. The State respondents cannot ban unvaccinated people from working in shops or operating commercial or public transportation vehicles since the State Government has not met its goal of vaccinating all eligible people, as indicated by the learned Additional Advocate General. Because the state failed to complete the immunisation of the targeted population, the unvaccinated inhabitants of the state cannot be blamed.

Regarding the learned Additional Advocate General’s contention that the State Government can impose restrictions on citizens’ Fundamental Rights under the Disaster Management Act, 2005 (hereinafter referred to as the “Act”), by way of the SOP, we believe that this is clearly unsustainable, as the clauses in the SOP at issue in this case impose restrictions on citizens’ Fundamental Rights (6).

A restriction cannot be arbitrary or of a type that is incompatible with the general public’s interest. Though no general pattern or fixed principle can be laid down that can be applied universally because conditions vary from case to case, keeping in mind the prevailing conditions and surrounding circumstances, Article 19(6) of the Constitution requires that the restriction be made in the form of law rather than an executive order. The Act’s preamble indicates unequivocally that it is an act to provide effective disaster management and for matters related with or incidental thereto.

Judgements:

Vaccinated people working in shops/stores and driving transport/commercial vehicles are required to wear masks and follow all correct covid precautions, according to the SOP. If an unvaccinated person is forced to follow the same protocols as a vaccinated person, there can be no difference in their performance. As a result, the restriction imposed solely on the basis of non-vaccination is arbitrary and unfair.

In light of the foregoing, we hold that the restrictions imposed on unvaccinated 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 in conflict with the provisions of Articles 14, 19, and 21 of the Constitution.

The above-mentioned impugned clauses are overturned to the degree that the allowances available and offered to vaccinated persons in the aforesaid clauses are likewise rendered equally applicable to unvaccinated people. As a result, the State responders are required to submit a corrigendum to the SOP dated June 29, 2021, as soon as possible, integrating the aforesaid instructions.

Written By- Indrajeet Prasad

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