- The Hon’ble Supreme Court (SC or Court),in its final hearing in the plea challenging the constitutionality of Covid-19 vaccine mandate, in the case of Jacob Puliyel v Union of India, has asked the Government to respond whether a person has absolute rights to deny the vaccine.
- The plea seeks a declaration from the Court that mandating Covid-19 vaccine by way of making it a prerequisite to avail access to services impinges the fundamental rights of citizens.
- It was argued before the two Judge Bench of Justices Nageshwar L Rao and B R Gavai that the choice of vaccination is solely a personal prerogative of an individual and contended that COVID-19 survivors, equipped with natural antibodies, showed better immunity in comparison to their vaccinated persons.
- Senior Advocate Prashant Bhushan (Sr. Adv.) appeared on behalf of the Petitioner. The next hearing is scheduled on 8 March.
- The Court limited itself to the question whether the policy decision taken by the concerned Government was based on relevant data or arbitrarily executed.
- The Sr. Adv expressed his concern on the clinical trial data and data on adverse effects of the vaccine not being made available to enable an individual to take an informed decision.
- Placing reliance on Master Hridaan Kumar Minor v Union of IndiaW.P.(C) 343 of 2019, it was argued that information as to contra-indications must be made available before consent for getting vaccinated was obtained. He also contended that the Government did not put out any data on phase 3 trials and vaccines for public and scientific scrutiny.
- Supreme Court’s decision in K Puttaswamy v UOI (2017) 10 SCC 1 and Common Cause v UOI (2018) 5 SCC1 was also highlighted to add weight to the argument that informed consent was indispensable for medical procedures and bodily integrity is an integral part of the right to privacy flowing from Article 21 of the Constitution.
- He further argued that State Governments were making the vaccination mandatory by adopting direct/ indirect means despite the Central Government’s affidavit clearly stating that the vaccine was optional. He also stated that these mandates were unconstitutional and at odds with scientific caution and emerging evidence.
- The Sr. Advocate’s argument rested upon the fact that although vaccines prevent the severity of an illness, they do not, in any manner, prevent its transmission and thus non-vaccinated persons do not pose any public health concern. He also highlighted that UK and New Zealand have withdrawn vaccine mandates.
- Relying on various studies and scientific journals, the Sr. Adv submitted that immunity resulting from a natural infection was far more superior than acquired immunity through vaccines and stated that since infected people develop Antibody Dependent Enhancement, vaccinating them could expose them to serious problems.
- On the mandate by the Indian Certificate of Secondary Education (ICSE) making vaccination mandatory for children to appear for exams, it was submitted that such a precondition was egregious owing to the fact that majority of the children were hardly affected by Covid and the ones vaccinated were showing symptoms of myocard it is post vaccination.
- Countering the Sr. Advocate’s argument, the Additional Solicitor General (ASG) appearing on behalf of the Government submitted that the claim about children showing myocard it is symptoms was irrelevant because the vaccine administered to them contained either dead or inactive virus.
- The ASG sought additional for rebuttals since the contentions raised in the written submission of the Petitioner were beyond the issues raised in the Writ Petition.
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