Gau HC | “Not based on intelligible differentia”; HC stays Arunachal Pradesh’s order discriminating between vaccinated and non-vaccinated persons

Gauhati High Court: Nani Tagia, J., stayed the order of the State Executive Committee of Arunachal Pradesh whereby non-vaccinated persons for Covid-19 were being discriminated for the purpose of permit to enter the State for developmental works in both public and private sector.

Covid-19 Vaccination:  Whether Mandatory or Voluntary?

The petitioner contended that as per the RTI Information furnished by the Ministry of Health & Family Welfare, which is available on the Ministry’s website, Covid-19 vaccination is not mandatory but voluntary. The petitioner also referred to an answer given on 19-03-2021 in the Lok Sabha to an Unstarred Question No. 3976 by the Minister of State in the Ministry of Health & Family Welfare stating that there is no provision of compensation for recipients of Covid-19 Vaccination against any kind of side effects or medical complication that may arise due to inoculation. The Covid-19 Vaccination is entirely voluntary for the beneficiaries. The petitioner contended that the impugned order had interfered with the fundamental rights granted under Article 19 (1) (d) of the Constitution.

Analysis by the Court

Vide Clause 11 of the Order dated 30-06-2021, issued by the Chief Secretary cum Chairperson-State Executive Committee, Government of Arunachal Pradesh, vaccinated and unvaccinated persons for Covid-19 virus had been classified into two groups for the purpose of issuing temporary permits for developmental works in both public and private sector. Clause 11 of the Order reads as under:

“11. Tourist ILPs shall remain suspended during the period of this order, however for developmental works in both public and private sector; temporary permits may be issued provided such persons are vaccinated for COVID 19.

While persons who were vaccinated for Covid-19 had been allowed to be issued with a permit to visit Arunachal Pradesh, persons who were not vaccinated with Covid-19 vaccine had not been allowed to be issued with a temporary permit to visit Arunachal Pradesh for developmental works in both public and private sector. The Bench stated that the right granted under Article 19 (1) (d) of the Constitution to move freely throughout the territory of India is not absolute and the State may impose reasonable restrictions either in the interest of the general public or for the protection of the interest of the Scheduled Tribe. However, such restrictions must be a reasonable one conforming to the requirement of Article 14 of the Constitution.

Whether Classification of Vaccinated and Non-vaccinated was based on intelligible differentia

Noticing that the classification sought to be made between the vaccinated and unvaccinated persons was to contain Covid-19 pandemic and its further spread in the State of Arunachal Pradesh, the Bench stated that, “there is no evidence available either in the record or in the public domain that Covid-19 vaccinated persons cannot be infected with Covid-19 virus, or he/she cannot be a carrier of a Covid-19 virus and consequently, a spreader of Covid-19 virus.”

The Bench said that in so far as the spread of Covid- 19 Virus to others is concerned, the Covid-19 vaccinated and unvaccinated person or persons are the same. Both can equally be a potential spreader if they are infected with the Covid-19 Virus in them. Hence, the classification must always rest upon some real and substantial distinction bearing reasonable and just needs in respect of which it is made.

Hence, the Bench stated, if the sole object of issuing the impugned order was for containment of the Covid-19 pandemic and its further spread in the State of Arunachal Pradesh, the classification sought to be made between vaccinated and unvaccinated persons was, prima facie, a classification not founded on intelligible differentia nor it was found to have a rational relation/nexus to the object sought to be achieved by such classification, namely, containment and further spread of Covid-19 pandemic.

Decision

Thus, the Bench held that the impugned notification violated Articles 14, 19 (1) (d) & 21 of the Constitution, in so far it made classification of vaccinated and non-vaccinated persons for the purpose of issuance of temporary permits for developmental works in the State of Arunachal Pradesh. Accordingly, Clause 11 of the impugned order was stayed to the extent it discriminated between Covid-19 vaccinated persons and Covid-19 unvaccinated persons.[Madan Mili v. Union of India, 2021 SCC OnLine Gau 1503, decided on 19-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Advocates for the Petitioner: Debasmita Ghosh, Ebo Mili, Chanya Bangsia and S. Dey

Advocates for the Respondent: Marto Kato, ASG, R. H. Nabam, Addl. Adv. General, A.P

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