Kerala HC Dismisses Plea Seeking Removal Of PM's Photograph From Covid-19 Vaccination Certificate With Cost

While taking strong exception to the petitioner questioning the PM's photo on vaccine certificate, the Kerala High Court in a simple, straightforward, succinct, suave, strict and significant judgment titled Peter Myaliparampil v. Union of India & Anr. in WP(C) No. 21560 of 2021 delivered most recently on December 21, 2021 dismissed the plea challenging the photograph of Prime Minister Narendra Modi being affixed on the vaccination certificates issued to citizens upon being vaccinated against Covid-19 and imposed a hefty cost of Rs one lakh on the petitioner. The petitioner named Peter Myalparambhil had moved the court in October arguing that using the Prime Minister's image on Covid-19 vaccine certificates "has no substance, utility or relevance". The single Bench Judge comprising of Justice PV Kunhikrishnan minced just no words to plainly yet powerfully say that, "He (Modi) is our Prime Minister, not the PM of any other country. He came to power through a mandate. Merely because you have political differences, you cannot challenge this…Why are you ashamed of our PM? [If] 100 crore people do not have any issue with this, why do you? Everyone has different political opinions, but he is still our Prime Minister. You are wasting judicial time."

Upon noting that the petitioner was the State-level master coach of the Jawaharlal Nehru Leadership Institute of New Delhi, the Court had remarked that, "You work at an Institute named after a Prime Minister. Why don't you ask the university to take that down as well?" Absolutely right! There is full logic in what the Court has said!

To start with, the ball is set rolling first and foremost in para 1 of this learned, laudable, landmark and latest judgment authored by a single Judge Bench of Justice PV Kunhikrishnan of Kerala High Court wherein it is put forth that, "This writ petition is filed with a prayer to declare that affixing the photograph of the Hon'ble Prime Minister of India in the COVID-19 Vaccination Certificate of the petitioner is an infringement of his fundamental right. There is a further prayer to issue appropriate direction to the 1st respondent to issue the petitioner a COVID-19 vaccination certificate without the photograph of the Hon'ble Prime Minister in it, along with access to the COWIN platform, to generate such a certificate when needed."

Most significantly, what forms the cornerstone of this notable judgment is then laid bare in para 11 stating that, "Our country is facing the Covid-19 pandemic for the last one and half years. The country faced 1st and 2nd waves of the pandemic. Because of the hard work of our experts in the vaccine field, our country was able to produce a vaccine for this pandemic. Moreover, vaccines manufactured in other countries are also available in the market. The population of India is now nearing 140 crores. The only way to eliminate the COVID-19 pandemic is vaccination by all the citizens. In such situation, while issuing a certificate for COVID-19 vaccination, if the Prime Minister of India gave a message with his photograph that with the help of medicine and strict control, India will defeat COVID-19, what is wrong with it? When the counsel for the petitioner argued this case, I specifically asked him this question. Counsel says that the photograph of the Hon'ble Prime Minister of India in his vaccination certificate is an intrusion to his privacy! What a fantastic argument! Is he not living in this country? The Prime Minister of India is not a person who entered the parliament house by breaking the roof of the parliament building. He came to power because of the mandate of the people. The Indian democracy is being praised by the world. The Prime Minister is elected because he has got people's mandate. Till the general election is over, the citizen can campaign based on their political view. Once the election is over and the majority of people gave a mandate to a political party which leads to the election of Prime Minister, he is not the leader of that political party but he is a leader of the country. There can be grievances against the policies of the Government. There can be political differences with the views of the Prime Minister. But those views can be raised in a democratic manner. In the next general election, they can make use of it and remove him with people's mandate. But once a Prime Minister is elected as per the constitution, he is the Hon'ble Prime Minister of our country and that post should be the pride of every citizen, whether the Prime Minister is "X" or "Y". When the country is facing a pandemic situation and at that time, the Hon'ble Prime Minister of India, gave a message in the vaccination certificate with his photographs to boost the morale of the citizen, I do not understand why the petitioner says before this Court that it is an intrusion to his privacy. This argument is to be rejected in limine and according to me, these kinds of arguments ought not to have been raised by citizens of the country who knows about our nation and its history. The petitioner claims that he is the State Co-ordinator of the National Commission for Peoples Right to Information. If the petitioner is coordinating this type of campaign, I have nothing to say but to pity him. The petitioner claims to be an extension faculty of Kerala Institute of Local Administration and State Level Master Coach of the Jawaharlal Nehru Leadership Institute, New Delhi. While the counsel for the petitioner was arguing the case, I asked him why his client is working as a State Level Master Coach of Jawaharlal Nehru Leadership Institute because the name of our former Prime Minister Pt. Jawaharlal Nehru is there in the name of that institute. But there is no proper answer to the same. According to my opinion, from the conduct of the petitioner, it is clear that he is trying to do a publicity oriented litigation instead of genuine litigation with a cause."

Briefly stated, the Bench then pointed out in para 12 that, "Another fantastic argument from the petitioner is based on an article by Carolin Mala Corbin from the University of Miami Law School, who argues for a new First Amendment Right, Against Compelled Listening. The petitioner produced a table based on that article and argued that there are speakers right, listeners right, and viewers right. According to the counsel for the petitioner, the speaker's right is the right to speak and there is also a right against compelled speech. It is further contended that the listener's right is to right to listen and there is also a right against compelled listening. Thereafter the petitioner contends that viewers' right is the right to see and there is a right against compelled viewing. The fantastic argument of the petitioner is that the photograph of the Hon'ble Prime Minister of India with a morale boosting message in the vaccination certificate, when the COVID-19 pandemic is all around us even now is a compelled viewing of the Prime Minister's photograph! I have no words to the petitioner to these types of arguments. First of all, the petitioner has not read the article of Caroline Mala Corbin in full. The same is not even produced before this Court in full. When a party to a lis relies on a material to support his argument he is bound to produce the entire materials and not a portion of it. if the entire material is not produced, the court can reject that argument for that simple reason itself. But I try to obtain the same from the internet so that if there is any point in it the petitioner should not suffer for the nonproduction of the same alone. In that article right against compelled listening is separately mentioned with a separate caption. It will be better to extract that portion of the article of Caroline Mala Corbin which is available on the internet.

"D. Right Against Compelled Listening

The same values that undergird the traditional free speech rights support a right against compelled listening. When the government forces its arguments or information onto unwilling recipients, it can distort the proper functioning of the marketplace of ideas and undermine democratic decision-making by the people. More obviously, though, when the government makes a captive audience listen against its will to a government message, it runs roughshod over individuals right to control their own development and decision-making processes. As a result, the right against compelled listening is most strongly grounded in the First Amendment values of autonomy, self-realization, and self-determination.

As a doctrinal matter, the proposed right against compelled listening builds on the captive audience doctrine. A principal difference between the existing doctrine and the free speech right against compelled listening is that while the captive audience doctrine is conceived as a limit on private speech, a constitutional right against compelled listening limits the government. That difference aside, the elements required to establish a compelled listening case are similar to a captive audience claim: the listener must be a captive audience in the descriptive and normative sense.

Thus, the right against compelled listening does not preclude the government from advocating policy positions or launching public education campaigns. Instead, protection against unwanted speech only attaches when there is captivity. If the government wants to run magazine advertisements detailing the dangers of smoking, it may do so as long as it does not make reading them mandatory. The state violates the right against compelled listening only when the government's message crosses over from available to required viewing. The magazine advertisements would not qualify because people can easily avert their eyes from them.

As with any free speech right, the right against compelled listening is not absolute. Government action frequently implicates free speech rights without violating them. Instead, the same levels of scrutiny applicable to the other free speech rights should likewise apply. For example, conduct regulations that incidentally require compelled listening would be subject to a lower level of scrutiny, but viewpoint-based compelled listening would be unconstitutional unless it passes strict scrutiny. If strict scrutiny applies, the state can override the listener's free speech rights and impose a viewpoint-based message only if the state's interest is compelling, such as preventing harm to others, and its means are narrowly tailored.""

As a corollary, the Bench then envisages in para 13 that, "From the above portion of the Article itself, it is clear that the State can override the listener's free speech rights and impose a viewpoint based message if the State's interest is compelling such as preventing harm to others and its means are narrowly tailored. Here is a case where the entire country and the world is facing a pandemic situation and in such a situation, the Hon'ble Prime Minister of India is giving a morale boosting message to his fellow citizens through vaccine certificate :- "Medicine and strict control by the citizens will defeat COVID-19". At any stretch of the imagination, It cannot be said that it will come within the four corners of right against ‘compelled listening or viewing'. Moreover, even as per the above article, the ‘compelled listening or viewing' is only when the Government forces its arguments or information onto unwilling recipients. In other words, when the Government makes a captive audience and forces them to listen or view a Government message, then only it can be stated that there is compelled listening or viewing. Therefore, the principle of the above right mentioned in the article against compelled listening is applicable only if there is a captive audience. The meaning of captive audience is "a person or people who are unable to leave a place and are forced to listen to what is being stated". In the article mentioned above itself it is stated that if the Government wants to run magazine advertisements detailing the dangers of smoking, it may do so as long as it does not make reading them mandatory. The State violates the right against compelled listening only when the Government message crosses over from the available required viewing. The magazine advertisements would not qualify the same because people can easily avert their eyes from them. Similarly, if the petitioner does not want to see his Prime Minister or if he is ashamed to see the picture of his Prime Minister, he can avert his eyes to the bottom side of the vaccine certificate. Therefore, the argument by the petitioner that the photograph of the Hon'ble Prime Minister of India with a morale boosting message to his fellow citizens through the vaccination certificate is a compelled viewing of the photograph of the Hon'ble Prime Minister of India is to be rejected. This is also a frivolous contention raised by the petitioner. Yet another contention is based on Ext P9 series vaccination certificates issued to the citizens of other countries in which there are no photographs of their Prime Minister. It deserves no answer according to me. Whether the photographs of the Prime Minister of a particular country is to be exhibited in their vaccination certificate is to be decided by that country."

Most remarkably, the Bench then minced no words to hold in para 14 that, "There is a general trend to a section of the citizens of our country that the political leaders are all corrupt people and they cannot be believed. I think, from this concept, these types of arguments are coming into the mind of the petitioner. But can anyone generalise like that? What is wrong with politicians? Since there is a small percentage of politicians are having a bad history, the entire politicians need not be ignored. They are the builders of our nation with innovative ideas. Executive, judiciary, and legislature are the three organs envisaged in our Constitution. If a parliamentarian commits a mistake the judiciary can scrutinise the same. If a judge of the constitutional court commits mistakes there is power to the parliament to impeach him. This is the beauty of our constitution. The politicians are going to the people and spending time with them directly. The people elect the eligible persons among them and send them to the Parliament and the majority party will select their leader and he will be our Honourable Prime Minister for five years. Till the next general election, he will be the Prime Minister of India. Nobody can say that a Prime Minister is a Congress Prime Minister or a BJP Prime Minister or the Prime Minister of any political party. Therefore, according to me, it is the duty of the citizens to respect the Prime Minister of India, and of course, they can differ on the policies of the Government and even the political stand of the Prime Minister. They can address the citizens saying that what the Government under the leadership of the Prime Minister is doing is not for the welfare of the citizens. But the citizen need not be ashamed to carry a vaccination certificate with the photograph of the Prime Minister with a morale boosting message, especially in this pandemic situation. There is no infringement of a fundamental right or any other right like compelled viewing, etc in such a situation as alleged by the petitioner. These are frivolous contentions that should be curbed immediately."

On a very practical note, the Bench then finally feels compelled to hold in para 17 that, "The contentions of the petitioner, in this case, cannot be accepted at all. According to my opinion, this is a frivolous petition filed with ulterior motives and I have a strong doubt that there is political agenda also to the petitioner. According to me, this is a publicity oriented litigation. Therefore, this is a fit case that is to be dismissed with a heavy cost. A citizen of this country argues before the High Court that carrying the photograph of his Prime Minister in the vaccination certificate with a morale boosting message in a pandemic situation is an intrusion to his privacy. The petitioner says that it is a ‘compelled viewing'. As I observed earlier, these are frivolous contentions, which never expects from a citizen. The petitioner should study the respect to be given to the Prime Minister and others by watching at least the parliamentary proceedings, which are available live on National TV. The opposition leaders will object to the policies of the Government with vehemence. But they will address the Prime Minister as the ‘Hon'ble Prime Minister'. According to me, an amount of Rs.1,00,000/- should be imposed as a cost in the facts and circumstances of this case. I know the above amount is big as far as a citizen is concerned. But, when these types of frivolous contentions are raised by the petitioner, he should know the effect and the society also should know that if frivolous petitions are filed, the Court will not accept the same. Thousands of convicted persons in criminal cases are in jail in our country waiting for hearing their appeals. Thousands of people are waiting for a result in their matrimonial disputes. Thousands of people are waiting for the result in their property disputes. In such a situation, this Court has to consider those litigations as early as possible and this Court is doing that every day. In such a situation, when frivolous petitions are filed, that should be dismissed with a heavy cost. There can be a direction to the petitioner to pay the cost within six weeks from today and the cost should be paid to the Kerala State Legal Services Authority (KELSA) which is doing a great job in the state of Kerala by helping the poor genuine litigants. If the amount is not paid by the petitioner, the KELSA should recover the same from the assets of the petitioner by taking appropriate steps through revenue recovery. Therefore, the above writ petition is dismissed imposing a cost of Rs. 1,00,000 (Rupees One Lakh only) which is to be paid by the petitioner to the Kerala State Legal Services Authority within six weeks. If the amount is not paid by the petitioner within six weeks, the KELSA will take appropriate steps to recover the same through revenue recovery from the assets of the petitioner, in accordance to law forthwith and report the same before the Registrar General of this Court after recovery. The registry will serve a copy of this judgment to the Member Secretary, KELSA for compliance."

On the whole, this cogent, commendable, composed, courageous and convincing judgment by a single Judge Bench of Justice PV Kunhikrishnan of Kerala High Court has very elaborately pointed out why the PM's photo on vaccine certificate should not be removed. It may be recalled that during a previous hearing on November 23 by a different Bench, the Court discouraged the petitioner saying that his plea had larger implications and asked him how would it seem if someone came up with a plea to remove Mahatma Gandhi's image from currency notes!

By all accounts, by imposing a heavy penalty, the Kerala High Court has sent out a very loud and strong message to all litigants that court's time should not be wasted for frivolous purposes and if someone still dares to do so then he/she should be prepared to face the grave consequences as we see in this noteworthy case also! Very rightly so! There can be just no denying it!