JUSTICE D.Y. CHANDRACHUD’S JUDGMENT ON VACCINATION OF HEALTH WORKERS IS ILLEGAL, PER-INCURIAM AND VIOLATIVE OF FUNDAMENTAL RIGHTS OF THE CONCERNED.’

  • The life of the workers under prohibited category and who are allergic to vaccines is in danger due to such blanket order. The court passed a judgment in violation of Constitutional mandate, Supreme Court’s own judgment, and Central Government’s directives that protect the right of every citizen to choose between medical treatment available for him.
  • Such judgments of the Supreme Court are under the per-incuriam category and are not binding on state and can be ignored with impunity.
  • Court cannot bypass the process of informed consent of the patient. 

New Delhi:- The Indian Bar Association strongly criticized the blanket order of vaccination of persons in mental health care institutions. The said judgment comes under the category of per-incuriam and it is vitiated and cannot be followed as precedent. A law to not to follow such judgments is laid down by the Supreme Court itself.

The said judgment is dated 01.09.2021 and passed in the case between Gaurav Bansal Vs. Dr. Dinesh Kumar in W.P. (C) No. 412 of 2016. The judgment is passed by a bench of  Justices Shri. D.Y. Chandrachud, Shri. Vikram Nath and Ms. Hima Kohli.

1. BRIEF BACKGROUND OF THE CASE:-

1.2. On 01.09.2021 the court passed the following order.

“2. As regards the vaccination of persons with mental illness in mental health care institutions, the Ministry of Social Justice and Empowerment addressed a communication on 7 July 2021 to the Ministry of Health and Family Welfare. The Ministry of Health and Family Welfare has accordingly directed all the States/Union Territories to ensure the vaccination of mentally ill persons who are lodged in mental health care institutions against Covid-19 on a priority basis by their letter dated 8 July 2021.”

lodged in mental health care institutions against Covid-19 on a priority basis by their letter dated 8 July 2021.

2. ILLEGALITY OF THE ORDER:-

    The abovesaid order is highly illegal and without jurisdiction because:

2.1.    The order is against the Audi Alterem Partem rule which says that no one should be condemned unheard. The order which is passed without hearing the concerned health workers and family members of the mentally unfit persons is a nullity.

2.2.    It is against Central Government’s mandates which say vaccination is voluntary and not compulsory. No act or rule gives authority to the Supreme Court to pass such a blanket order which is violative of the fundamental rights of the citizen.

2.3.    It is against Article 7 of International Covenant on Civil and Political Rights (ICCPR) which read thus;

Article 7:- No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

The abovesaid Articles of (ICCPR) are binding in India as had been ruled by the Constitution Bench in the case of Anita Kushwaha Vs. Pushap Sudan (2016) 8 SCC 509 and by the Full Bench in Mohd. Hussain Vs. State (2012) 2 SCC 584.

2.4.    The effect of judgment dated 01.09.2021 will have the impact of by passing the mandate of the Universal Declaration on Bio Ethics & Human Rights, 2005. Which mandates that without taking informed consent of the patient no doctor can give any medicine, vaccines to him.

Here, the corona vaccines are experimental and given Emergency Use Authorization (EUA).

Hence, the judgments like passed on 01.09.2021 have direct impact of encroachment on fundamental rights of the person as the authority will by pass the procedure prescribed by law and therefore, it is violative of Article 21 of the Constitution of India.

2.5.    Full Bench of Hon’ble Supreme Court in Nandini Sathpathy’s case Nandini Sathpathy’s case (1978) 2 SCC 424, made it clear that such order should not be followed by the state authorities. It is ruled as under;

19… If the alibi is that the Sessions Court had directed the accused to appear at the police station, that is no absolution for a police officer from disobedience of the law .

 Such deviance must be visited with prompt punishment since policemen may not be a law unto themselves expecting others to obey the law. The wages of indifference is reprimand, of intransigence disciplinary action. There is public policy, not complimentary to the police personnel, behind this legislative proscription which keeps juveniles and females away from police company except at the former's safe residence. May be, in later years, community confidence and consciousness will regard the police force as entitled to better trust and soften the stigmatising or suspicious provisions now writ across the Code.

2.6.    Due to such blanket orders there may be death causing side effects  to the persons who are having allergies to the contents of the vaccines.

The vaccine companies alongwith their vaccines i.e. covaxin and covishield had given a specific list of the category of persons who should not take their vaccines. The prohibited categories are as under;

2.6.1. COVAXIN:-

The fact sheet available on the website of the Covaxin states that certain categories of persons should not be administered the vaccine. The fact sheet can be found at https://www.bharatbiotech.com/images/covaxin/ covaxin-factsheet.pdf

The relevant part of the fact sheet is asunder:

“What should you mention to your vaccine provider before you get Covaxin? Tell the Vaccintor/officer supervising your vaccination about all of your medical conditions, including if you: 

Are on regular medication for any illness,

for how long and for which condition.

It is not advisable to take the vaccine in any of these conditions - have any allergies

have fever 

have a bleeding disorder or a blood thinner 

are immunocompromised or

are on a medicine that affects your immune system 

Are pregnant ;

Are breast feeding 

Have received another Covid-19 vaccine

WHO SHOULD NOT GET COVAXIN –

You should not get Covaxin if you :

1.       Had a severe allergic reaction to any ingredients of the vaccine

2.       Had a severe allergic reaction after a previous dose of the vaccine

3.       Currently have an acute infection or fever

4.       Further in a document released by Bharat Biotech titled

“SUMMARY OF PRODUCT CHARACTERISTICS” dated 15 Jan 2021, the effect of the vaccine has been explained for certain categories of work and exercise. The relevant part of the report is as under:

4.1 Interaction with other medicinal products. Chloroquine and Corticosteroids as they may impair the antibody response.

4.2 Effects on ability to drive and use machines

No studies on the effect of COVAXINTM on the ability to drive and use machines have been performed. The link of the report titled “SUMMARY OF PRODUCT CHARACTERISTICS” dated 15 Jan 2021 can be found at:

https://cdsco.gov.in/opencms/export/sites/ CDSCO_WEB/en/COVAXIN-SMPC_-BBIL.pdf

It is submitted that Chloroquine is a medication primarily used to prevent and treat malaria in areas where malaria remains sensitive to its effects. Corticosteroids are a class of drug that lowers inflammation in the body. They also reduce immune system activity. Because corticosteroids ease swelling, itching, redness, and allergic reactions, doctors often prescribe them to help treat diseases like: asthma.

As can be seen from the above there are many diseases for which vaccine should not be taken/given. Immunocompromised can be due to many causes, such as  chronic medical conditions, such as heart disease, lung disease, diabetes, HIV, and cancer  autoimmune diseases, such as lupus, multiple sclerosis, and rheumatoid arthritis  medications or treatments, such as radiation therapy  transplants, such as bone marrow or solid organ This can be found at:

https://www.healthline.com/health/immunocompromised-how-toknow-if-you-have-a-weakened-immune-system

2.6.2. COVISHIELD:-

Similarly the fact sheet of Covishield Vaccine states the categories who should not take the vaccine. The fact sheet can be accesses at: CCCC  https://www.seruminstitute.com/pdf/covishield_fact_sheet.pdf

The relevant part of the Fact sheet is as under:

“What you should mention to your health care provider before you get the Covishield vaccine: Tell the healthcare provider about all of your medical conditions, including; 

If you have ever had a severe allergic reaction (anaphylaxis) after any drug, food, any vaccine or any ingredients of Covishield vaccine

If you have fever 

If you have a bleeding disorder or on a blood thinner 

If you are immunocompromised or are on a medicine which affects the immune system 

If you are pregnant or plan to become pregnant 

If you are breast feeding 

If you have received another covid-19 vaccine

You should not get the covishield if you 

Had a severe allergic reaction after a previous dose of this vaccine Had a severe allergic reaction to any ingredients of this vaccine”

The insert sheet of Covishield Vaccine gives warnings against the use of Covid-19 vaccine for certain categories of persons. The product sheet can be found at:

https://www.seruminstitute.com/pdf/covishield_ChAdOx1_nCoV19_corona_virus_vaccine_insert.pdf

The relevant part of the product sheet is asunder:

“4.4 Special warnings & Special precautions for use - Hypersensitivity As with all injectable vaccines, appropriate medical treatment and supervision should always be readily available in case of an anaphylactic event following the administration of the vaccine. Concurrent illness As with other vaccines, administration of Covishield should be postponed in individuals suffering from an acute severe fibrile illness. However the presence of a minor infection such as cold and/or low grade fever should not delay vaccination.

Thrombocytopenia and coagulation disorders As with other intramuscular injections Covishield should be given with caution to individuals with Thrombocytopenia, any coagulation disorders or to persons on anti-coagualation therapy, because bleeding/bruising may occur following an intramuscular administration in these individuals.

Immunocompromised Individuals It is not known whether individuals with impaired immune responsiveness, including individuals receiving immune suppressant therapy, will elicit the same response as immune competent individuals to the vaccine regimen.

Immunocompromised Individuals may have relatively weaker immune response to the vaccine regimen.

4.5 Interactions with other medicinal products and other forms of interaction. No interaction studies have been performed. Concomitant administration of Covishield with other vaccines has not been studied. 4.6 Fertility, pregnancy and lactation Fertility Preliminary animal studies do not indicate direct or indirect harmful effects with respect to fertility.

Pregnancy There is a limited experience with the use of ChAdOx1 nCoV-19 Corona Virus Vaccine (Recombinant) in pregnant women. … Breastfeeding It is unknown whether covishield is excreted in human milk.”

Thrombocytopenia is a dangerous drop in the number of platelets in the blood. This decrease can increase the risk of bleeding. Thrombocytopenia occurs in people without cancer as well. Coagulation disorders are disruptions in the body's ability to control blood clotting. Coagulation disorders can result in either a hemorrhage (too little clotting that causes an increased risk of bleeding) or thrombosis (too much clotting that causes blood clots to obstruct blood flow). As with other intramuscular injections,

COVISHIELD should be given with caution to individuals with thrombocytopenia, any coagulation disorder or to persons on anticoagulation therapy, because bleeding or bruising may occur following an intramuscular administration in these individuals.

Re interaction with other medicinal products, it is important to note that patients who are on regular medications for Diabetes, heart issues, other lifestyle diseases where daily medication is required, no studies have been done.

Re Breast feeding- It is unknown whether Covishield is excreted in human milk. - Since this vaccine is not a live attenuated or inactivated virus technology but an Recombinant DNA technology in which Adeno Viruses carry a spike protein DNA molecule of Sarscov 2 which enters into human cells nucleus and instructs the DNA of the human cell to produce mRNA which instructs the ribosomes to produce spike proteins, and then our immune system responds to the proteins. This is very alarming as we don’t know what reaction it will create in newborn babies when the human milk is consumed. The link to a news article explaining recombinant DNA vaccine of Covishield can be found at:

https://www.nytimes.com/interactive/2020/health/oxford-astrazeneca-covid-19-vaccine.html

Further re Duration and level of protection, it has not yet been established. Vaccinating with Covishield may not protect all vaccine recipients. As can be seen from the above there are many diseases for which vaccine should not be taken/given. People can be immunocompromised due to many reasons- diabeties, heart issues, thyroid gland problem, arthritis, crohns disease, psoriasis, eczema IIII etc and a high percentage of people with various comobordities are using blood thinners.

Hence the Government & vaccine manufacturers should give more clarity on these issues, & if these implications are correct, then the Government must stop recommending people with comorbidities to get vaccinated.

It is further submitted that being immunocompromised can be due to many causes:  chronic medical conditions, such as heart disease, lung disease, diabetes, HIV, and cancer  autoimmune diseases, such as lupus, multiple sclerosis, and rheumatoid arthritis  medications or treatments, such as radiation therapy  transplants, such as bone marrow or solid organ  pregnancy  a combination of any of the above This explanation can be found at:

https://www.healthline.com/health/immunocompromised-how-toknow-if-you-have-a-weakened-immune-system

2.7.    That, it is a fundamental rule that no one can force any citizen to take a particular medicine. It is his choice either to take vaccine or to choose Ayurvedic Medicine, Naturopathy, Unani or any other remedies available. This position is settled in binding precedents and also in Universal Declaration on bioethics and Human Rights, 2005 (UDBHR). [Exhibit - C]

The other relevant binding precedents are:-

i.        International Covenant of Civil & Political Rights 1976, (Article 7).

ii.       Universal Declaration on Bioethics and Human Rights, 2005.

iii.      Supreme Court of India’s judgment in Common Cause Vs. Union of India (2018) 5 SCC 1.

iv.      U.S. Court Judgment in Montgomery’s case (2015) UKSC 11.

v.      Aruna Ramachandra Shanbaug v. Union of India(2011) 4 SCC 454

vi.      K.S. Puttuwamy Vs. Union of India (2017) 70 SCC 7

vii.     Webster Vs. Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62

viii.    Airedale N.H.S. Trust Vs. Bland (1993) 1 All ER 821 [9 Judge bench] (followed in India)

ix.    Meghalaya Vs. State of Meghalaya 2021 SCC OnLine Megh 130

x.       In Re: Dinthar Incident Aizawl Vs. State of Mizoram 2021 SCC OnLine Gau 1313.

xi.      Osbert Khaling Vs State of Manipur 2021 SCC OnLine Mani 234.

                     xii.     Madan Mili Vs. UOI 2021 SCC OnLine Gau 1503.

xiii.   A. Varghese Vs. Union of India 2020 SCC OnLine Kar 2825

xiv.    Master Haridaan Kumar (Minor through Petitioners Anubhav Kumar and Mr. Abhinav Mukherji) Versus Union of India, W.P.(C) 343/2019 & CM Nos.1604-1605/2019,

xv.     Baby Veda Kalaan & Others Versus Director of Education & Others. W.P.(C) 350/2019 & CM Nos. 1642-1644/2019.  

2.8.    Even Government of India in its various circulars have clarified that the vaccines are voluntary and not mandatory. [Re: Dinthar Incident Vs. State of Mizoram 2021 SCC OnLine of Gau 1313]  [Exhibit - D]

2.9.    If anyone is forced to take vaccine then it is criminal offence and such person is entitled for getting compensation. [RegistrarGeneral Vs. State of Meghalaya 2021 SCC OnLine Megh 130] [Airedale NHS Trust Vs. Bland reported (1993) 2 WLR 316] [Exhibit - E Colly].

                                                    

2.10.  That the Hon’ble High Court in the case of N Balaji vs. Smt. Savithri  2003 SCC Online Mad 946 had ruled that any order that affects the rights of the party  cannot be passed. Court cannot treat anyone as animal.

It is observed as under;

“In the case in hand the Judge has only acted against the warranting procedures established by law in a one sided manner absolutely without giving any opportunity for the girl to speak out her mind and as though treating her dumb founded animal. The Judge has acted in a biased manner absolutely bereft of any reason or legal consideration but only acting as an instrument of the first respondent for reasons known to himself. - Nor under Section 98 of Cr. P. C. did the Judge have any jurisdiction on a major girl who volunteer to quit home. It has to be held that the Magistrate did not have jurisdiction to pass such orders.”

3. LAW OF PER-INCURIAM:-

3.1.    Hon’ble Supreme Court in State of M.P. v. Narmada Bachao Andolan, (2011) 7 SCC 639 had ruled that such judgments are per-incuriam and loses its efficacy as binding judgment. It is ruled as under;

“67. Thus, “per incuriam” are those decisions given in ignorance or forgetfulness of some statutory provision or authority binding on the court concerned, or a statement of law caused by inadvertence or conclusion that has been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.

69. The courts are not to perpetuate an illegality, rather it is the duty of the courts to rectify mistakes.

66. While dealing with the observations made by a seven-Judge Bench in India Cement Ltd. v. State of T.N. [(1990) 1 SCC 12 : AIR 1990 SC 85] , the five-Judge Bench in State of W.B. v. Kesoram Industries Ltd. [(2004) 10 SCC 201] , observed as under : (Kesoram Industries Ltd. case [(2004) 10 SCC 201] , SCC pp. 292 & 297, paras 57 & 71)

“57. … A doubtful expression occurring in a judgment, apparently by mistake or inadvertence, ought to be read by assuming that the court had intended to say only that which is correct according to the settled position of law, and the apparent error should be ignored, far from making any capital out of it, giving way to the correct expression which ought to be implied or necessarily read in the context, …

***

71. … A statement caused by an apparent typographical or inadvertent error in a judgment of the court should not be misunderstood as declaration of such law by the court.”

           (emphasis added)

3.3.    The Apex court in  Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694, refused to follow the decision of co-ordinate benches, which was opposed to the decision of an earlier Constitutional Bench. The Hon'ble Supreme Court explained the concept of "per incuriam" as following:

"139. Now we deem it imperative to examine the issue of per incuriam raised by the learned counsel for the parties. In Young v. Bristol Aeroplane Company Limited (1994) All ER 293 the House of Lords observed that 'Incuria' literally means 'carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.

 140. Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 observed that where a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.

141. This court in Government of A.P. and Another v. B. Satyanarayana Rao (dead) by LRs. and Others (2000) 4 SCC 262 observed as under:

"The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue."

142. In a Constitution Bench judgment of this Court in Union of India v. Raghubir Singh (1989) 2 SCC 754, Chief Justice Pathak observed as under:

"The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court."

143. In Thota Sesharathamma and another v. Thota Manikyamma (Dead) by LRs. and others (1991) 4 SCC 312 a two Judge Bench of this Court held that the three Judge Bench decision in the case of Mst. Karmi v. Amru (1972) 4 SCC 86 was per incuriam and observed as under:

"...It is a short judgment without adverting to any provisions of Section 14 (1) or 14(2) of the Act. The judgment neither makes any mention of any argument raised in this regard nor there is any mention of the earlier decision in Badri Pershad v. Smt. Kanso Devi. The decision in Mst. Karmi cannot be considered as an authority on the ambit and scope of Section 14(1) and (2) of the Act."

3.3.   Full Bench of Hon’ble Supreme Court in M.S. Ahlawat Vs. State of Haryana (2000) 1 SCC 278 has ruled that ‘To perpetuate error is no virtue but to correct it is the compulsion of judicial conscience. 

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