Discrimination on the basis of vaccination status is a violation of fundamental rights: advocacy in Rajasthan HC


A written petition has been filed with the High Court of Rajasthan to quash a state government order restricting access to indoor sports, gymnasiums, restaurants and other public places to people who have received at minus one dose of vaccination. The ordinance also prohibits the operation of city buses and other markets and establishments based on vaccination status. The petitioner, a social activist, is concerned that the contested ordinance makes the vaccination process compulsory and discriminates against those placed in the same way on the basis of vaccination status.

The petition declares that the order is arbitrary and discriminatory, violating Articles 14, 19 (1) (g) and 21 of the Constitution of India, 1950. It states,

“The order attacked by making COVID19 vaccination mandatory by nature fails to create a level playing field for all because it ignores the realities on the ground such as accessibility to vaccination centers, technical obstacles to registration on the CoWIN portal, pre-medical conditions (allergies), vaccination for people with disabilities, etc., and does not grant any exemption / relaxation to those who are not able to comply for the reasons mentioned above . “

The applicant, represented by Lawyer Nishchay Nigam & Himanshu Kala, specifies that the ordinance is based on the unreasonable classification, that is to say the status of vaccination against COVID-19, without any rational connection imposing an embargo on the right of the individual to maintain the occupation and / or profession and therefore on the right to life. Thus, the contested ordinance flagrantly violates Article 14 of the Indian Constitution.

He alleges a disguised exercise of power by the state of Rajasthan as it attempts to indirectly restrict the basic rights of citizens, which cannot be directly violated. By encouraging the vaccination process, the state rewards what is already guaranteed by the Constitution.

Further, the petition points out that clauses (3) and (5) of the contested ordinance oblige businesses and business owners to adhere to the arbitrary and baseless parameter requiring that 60% of staff be vaccinated to operate for long periods of time. overtime. It discriminates between citizens on the basis of their vaccination status, limiting their right to exercise any profession or to exercise any occupation, trade or activity guaranteed by Article 19 (1) (g) of the Constitution of the United Nations. India, 1950. He notes,

“It is relevant to note that there has been no legal mandate regarding a coercive or compulsory vaccination campaign against COVID19 that could prohibit or deprive a citizen of a means of subsistence on this ground, except according to the procedure established by the law. ”

The petition argues for the right to self-determination and autonomy in medical care decisions referring to Common Cause v. Union of India 2018.

Coercive mandate for compulsory vaccination against COVID-19?

The petition refers to a judgment of the High Court of Meghalaya recognizing the voluntary nature of the COVID19 vaccination, observing that,

“A harmonious and intentional construction of the provisions of law and the principles of equity, good conscience and justice reveals that compulsory or forced vaccination with COVID19 does not find any legal force leading to such acts being liable to be declared ultra vires ab initio. ”

He also mentions that vaccination has been defined as “VOLUNTARY” in the Frequently Asked Questions [FAQ] published by the Ministry of Health and Family Welfare, Government of India, and the same was reiterated in a response from RTI by the central government.

The petition also notes that the contested ordinance ignores the fact that Rajasthan faces a severe shortage of vaccines, as the Chief Minister of Rajasthan pointed out in an open letter to the Prime Minister. Therefore, compulsory over-vaccination in a context of shortage and unavailability of vaccines is unfounded, impractical and arbitrary in law and is therefore likely to be canceled for this very reason.

It further takes into account the requirements to impose reasonable restrictions “in the interest of the general public” under Article 19, paragraph 6, which stipulates that the State does not have the power to issue instructions. executive, discriminating against people regarding their right to liberty, livelihood and life. , violating the fundamental rights of citizens, which the Constitution protects.

“The requirement of article 19, paragraph 6, of the Constitution is that the restriction must be made in the form of a law and not by means of an executive instruction. Therefore, the contested ordinance of 26.06. 2021, issued by the defendant, is likely to be canceled for this reason alone, ”the petition specifies.

Previously, the Madras High Court had expressed its reservation on the “right to refuse” the Covid-19 vaccine, because its administration involves the wider interest of “public health”.

Title: Ms. Jyotsna Rathore c. State of rajasthan

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