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[COVID-19] No one can be forced to get vaccinated
but bodily autonomy can be regulated: Supreme
Court upholds vaccination policy
A bench of Justices L Nageswara Rao and BR Gavai held that on the basis of
material, and considering expert views on severe disease, hospital admissions etc,
the current vaccine policy cannot be said to be unreasonable.
Supreme Court, COVID-19 vaccine
Debayan Roy
Published on : 02 May, 2022, 10:57 am 5 min read
The Supreme Court on Monday ruled that while no individual can be forced to get
vaccinated, the current vaccination policy followed by government as regards
vaccinated, the current vaccination policy followed by government as regards
restrictions imposed on individuals, is not arbitrary [Dr Jacob Puliyel vs Union of
India].
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A bench of Justices L Nageswara Rao and BR Gavai held that on the basis of available
material, and considering expert views on severe diseases, hospital admissions etc.,
the current vaccine policy cannot be said to be unreasonable.
"This court is satisfied that current vaccine policy cannot be said to be manifestly
arbitrary," the Court ruled.
Community interest outweighs individual interest, the bench added.
The Court, however, made it clear that vaccines cannot be mandatory and no person
can be forced to get vaccinated against his or her wishes though the government can
regulate the bodily autonomy of individuals.
"Considering bodily autonomy, bodily integrity is protected under article 21. No one
can be forced to get vaccinated. (But) government can regulate in areas of bodily
autonomy," the bench said.
The Court, however, said that as long as COVID numbers are low, no restriction should
be placed on individuals from accessing public areas and the same should be recalled if
such restrictions are in place.
"Till numbers are low, we suggest that relevant orders are followed and no restriction
is imposed on individuals on access to public areas or recall the same if already not
done," the judgment stated.
Pertinently, the Court ordered that all COVID vaccine trial data including of future
trials should be put in public domain subject to protection of privacy of individuals
who were subjected to such trials.
"Regarding segregation of vaccine trial data, subject to privacy of individuals, all
trials conducted and to be subsequently conducted, all data must be made available
to the public without further delay," the judgment said.
Below are the five takeaways from the judgment:
1 No one can be forced to be vaccinated;
1. No one can be forced to be vaccinated;
2. Central government directed to make public adverse effects of vaccination;
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3. Current COVID vaccination policy is not unreasonable or arbitrary;
4. Vaccine trial data should be put in public domain;
5. Court cannot second guess scientific or expert opinion.
On the aspect of bodily autonomy the court has noted that "bodily integrity is
protected under Article 21 of the Constitution of India and no individual can be forced
to be vaccinated".
Further the court stated that Personal autonomy of an individual involves the right of
an individual to determine how they should live their own life, which consequently
encompasses the right to refuse to undergo any medical treatment in the sphere of
individual health.
However, on the aspect of regulation, the top court has held that government can
regulate such bodily autonomy if the person is a threat to others.
"If there is a likelihood of such individuals spreading the infection to other people or
contributing to mutation of the virus or burdening of the public health
infrastructure, thereby affecting communitarian health at large, protection of which
is undoubtedly a legitimate State aim of paramount significance in this collective
battle against the pandemic, the Government can regulate such public health
concerns by imposing certain limitations on individual rights that are reasonable
and proportionate to the object sought to be fulfilled," reads the judgment.
No one can be forced to get vaccinated.
Supreme Court
The judgment was delivered on a petition filed by Dr. Jacob Puliyel, former member of
the National Technical Advisory Group, seeking disclosure of clinical trial data of
COVID vaccines and a declaration that making vaccination mandatory is
unconstitutional.
He prayed for a declaration that mandating vaccination for COVID, in any manner
whatsoever, even by way of making it a precondition for accessing any benefits or
services is a violation of rights of citizens and unconstitutional
services, is a violation of rights of citizens and unconstitutional.
The plea also alleged that the vaccines currently being administered have not been
adequately
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authorisation without the data being disclosed to the public.
"In India, the manner in which the vaccines have been licensed vitiates and even
precludes the possibility that the vaccines can be evaluated objectively in the future,"
the petition had stated.
The petitioner and handful of others like him would be enabled to create serious
misgivings and misconceived doubts against the vaccination, it was argued.
Advocate Guru Krishna Kumar for Bharat Biotech, the makers of Covaxin, had
submitted that the allegation of Phase III trial data not being published was incorrect.
"This is an attempt to release a cat among the pigeons" the counsel argued.
Counsel for the Serum Insitute of India, which produces and markets Covishield
vaccine, submitted that the matter is infructuous and all necessary data was already
with the regulators.
Rebutting these arguments, advocate Prashant Bhushan, representing the petitioner,
had contended that a vaccinated person transmits the virus as much as an
unvaccinated.
"If I am COVID recovered and vaccinated even then I will be at equal risk of
transmitting it to others, if i am infected again. If vaccination is not helping in reducing
the transmission, then it is my decision to get vaccinated or not. It is my decision and it
is my life. Serological survey shows that more than 80 percent of Delhi's population
have had the infection. Mere assertion by the govt is not enough if I have produced
evidence. Vaccine mimics a natural infection. There is no scientific journal in this world
which disputes this proposition."
Bhushan also alleged regularities regarding the grant of emergency use authorisation
to Covaxin, adding that there have been adverse effects to the vaccine.
"It is very clear from data that the people who have had infection is immune to
reinfection. Vaccine is only mimicking a part of the virus and when you get the whole
infection, you have the whole virus and thereby you develop all necessary anti bodies."
Solicitor General (SG) Tushar Mehta, representing the Central government, had
argued that the government was only trying to encourage vaccination, and that the
petitioner's stand may be to the detriment of others as it will lead to vaccine hesitancy.
The SG had pointed out that clinical data and vaccine vial monitors are updated on a
real-time basis and vaccines stored safely in cold storage.
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The Central government contended that the plea goes against national interest and
would violate the rights of citizens to get vaccinated against the virus.
In its affidavit, the Central government said that the petition directly harms public
interest.
"At this juncture, the entire concentration of the Central Government and the State
Governments should be and is on vaccination drive and encouraging people to get
them vaccinated. It is, therefore, not desirable at this juncture to invest time finding
out motives behind few elements attempting to act against the interest of nation at
the cost of violating the right of crores of citizens to be protected from pandemic," the
Central government had said in its affidavit.
The top court had during one of the previous hearings made clear that adjudicating
the matter cannot be construed as a signal that it does not trust the efficacy of
COVID-19 vaccines. It had nevertheless sought the Central government's response.
(Read Judgment)
Attachment
PDF Jacob Puliyel vs Union of India.pdf
Preview
Supreme Court of India Prashant Bhushan Covaxin Covishield
Covid vaccination Dr. Jacob Puliyel
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With over 15 years of experience, she has previously worked with Amarchand
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Maneesha Kongovi
Bar & Bench
Published on : 02 May, 2022, 7:35 pm
Maneesha Kongovi has left Argus Partners to join IndusLaw as a Partner in the firm's
Dispute Resolution practice at Bangalore.
Kongovi is a 2007 graduate of West Bengal National University of Juridical Sciences
(NUJS), Kolkata. With over 15 years of experience, she has previously worked with
Amarchand Mangaldas, Bharucha & Partners and Aditya Sondhi Law Chambers.
Between November 2014 and June 2019 Kongovi set up her own independent
Between November 2014 and June 2019, Kongovi set up her own independent
practice, after which she joined Argus, where she worked for close to 3 years as
Partner.
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Kongovi has represented domestic and international clients in diverse litigation and
arbitration, across several fora including the Supreme Court of India and various
tribunals. She has worked on matters related to high value commercial disputes,
customs claims, real estate and construction disputes, infrastructure disputes, writ
petitions, public interest litigation, winding up proceedings including corporate
insolvency and restructuring proceedings, and trademark infringement.
On Kongovi's joining the firm, Founding Partner Suneeth Katarki said,
“Maneesha is a very well-regarded lawyer. As our litigation practice continues to
expand in Bengaluru and also nationally, Maneesha’s induction will add further depth
and bandwidth to support our client base. We welcome her to the Partnership and
wish her all the very best.”
On joining the firm, Kongovi said,
“I am delighted to join INDUSLAW and be a part of the firm’s exceptional growth story.
I look forward to helping the firm further expand its Disputes management support to
its clients.”
IndusLaw Argus Partners Maneesha Kongovi
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News
[BREAKING] Jignesh Mevani bail: Gauhati High
Court
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stays lower
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Assam Police; bail to continue
Justice Devashish Baruah issued notice in the appeal filed by State of Assam and
stayed the adverse remarks while maintaining that the order should not to be
interpreted as a stay on grant of bail by the District Judge.
Jignesh Mevani Facebook
Abhimanyu Hazarika
Published on : 02 May, 2022, 7:07 pm
Adverse remarks made by a District Judge against the Assam Police while granting
bail to Congress leader Jignesh Mevani in an assault case, were stayed by the Gauhati
High Court on Monday [State of Assam and Anr vs Jignesh Mevani and anr].
Justice Devashish Baruah issued notice in the appeal filed by State of Assam and
stayed the adverse remarks while maintaining that the order should not to be
interpreted as a stay on grant of bail by the District Judge to the Congress leader.
Vadgam MLA Mevani was initially arrested for an allegedly offensive Tweet against
Prime Minister Narendra Modi. He had secured bail in that matter but was
i di t l t d i l i tb li f t i h d t
immediately arrested again on complaint by a police woman of outraging her modesty.
On the remarks of the Barpeta Sessions Court, the High Court observed that the same
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"These observations were made without there being any materials on record, on
which the learned Judge could have made such observations and consequently, this
Court stays the above quoted observations until further orders," the High Court said.
The High Court order made it clear however that its observations in the present
matter are not be meant to stay the bail granted to Mevani, for which the State is free
to initiate separate proceedings.
The Assam State government, represented by Advocate-General Devajit Saikia, had
moved the High Court after a Sessions Judge in granting bail to the Congress leader in
a case of alleged assault, had made strong observations against the police, particularly
on alleged fake encounters to kill accused persons.
The judge had called the first information report in the assault case 'false' and attempt
to give credibility to midnight arrest of persons. It had said that Assam was becoming a
police State and asked the High Court to direct the police to take measures like
wearing body cameras and installing CCTV during arrests.
The AG submitted before the High Court that the remarks were issued while hearing
Mevani's plea and was in no way related to bail.
The remarks demoralise the Police force by casting aspersions and would have a
"cascading effect" on the morale of the Assam Police, the AG added.
The High Court concurred with the AG and proceeded to stay the observations on the
ground that the same were made without any material on record.
Further, the High Court said that lower court's finding that the case appeared to be
manufactured to keep Mevani in custody for long was also beyond its jurisdiction in a
bail matter.
The order also allowed the removal of the name of the second respondent, the original
complainant (a lady police personnel) from being impleaded in the plea.
Gauhati High Court outraging modesty of a woman Jignesh Mevani
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Does JJ hospital have medical facilities to treat
Nawab Malik: Mumbai court asks Enforcement
Directorate
Malik, who is in judicial custody in a money-laundering case, has moved a Mumbai
court seeking temporary bail on medical grounds to conduct a surgery at a private
hospital.
Nawab Malik and Mumbai sessions court
Neha Joshi
Published on : 02 May, 2022, 6:29 pm
A Mumbai court on Monday directed the Enforcement Directorate (ED) to file a report
from the medical officer of JJ Hospital on whether it has facilities for testing and
treatment of Maharashtra Cabinet Minister Nawab Malik.
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The directions by the Court came in a temporary bail application filed by Malik,
presently admitted in the hospital for a medical emergency, seeking release from the
Arthur Road Jail for six weeks where he is presently lodged in a money-laundering
case involving underworld don Dawood Ibrahim.
Malik had filed the application for release on Friday through Rashmikant & Partners.
When the matter was taken up on Monday, his counsel Kushal Mor pointed out that
Malik was suffering from vomiting, diarrhoea, fever and chills, and was urgently
admitted to the JJ hospital in the afternoon.
He prayed that while the final hearing in the medical bail plea could be at the
convenience of the Court, but right now Malik should be transferred to a private
hospital of his choice where the doctors are aware of his medical history.
In response, ED opposed the application stating that since Malik had already been
transferred to a government hospital and it was the best hospital for treatment,
transfer to private hospital would not be required.
The investigating officer stated that the agency could check with the hospital and file a
detailed report on the availabilty of facilities.
This was accepted by Special Judge RN Rokade who directed the ED officer to file the
report by May 5.
The Court indicated that, based on the report, it will consider the interim prayer
sought by Malik.
The ED filed a detailed reply opposing the final relief of medical bail on the following
grounds:
Malik’s prayer for release from illegal detention had been rejected by the Bombay
High Court and subsequently by Supreme Court. The medical ground had never
been mentioned in those petitions.
The instant bail carving out medical grounds is one more attempt by the
applicant/accused to free themselves from the clutches of law
ED had always catered to Malik’s health while he was in their custody and even
during judicial custody. They added that if required, the JJ hospital is well-equipped
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to cater to Malik’s medical condition;
While Malik had a fundamental right to treatment, he cannot choose the hospital
he desires;.
Malik by seeking relief of interim bail for treatment in hospital of his choice,
intended to remain at large under pretext of prolonged health issued.
“Applicant (Malik) intends to escape the process of law as thereby he may get an
opportunity to remain at large at the pretext of prolonged health issues time and
again in collusion with the hospital of his choice” the ED reply said.
Enforcement Directorate Mumbai Sessions Court Nawab Malik
money laundering case
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Litigation News
No provisional registration for foreign medical
graduates without clinical training in India:
Supreme Court
The Court, however, held that students who obtained medical degrees from foreign
institutes are "national resources" who should be utilised to augment the national
health infrastructure.
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medical sector
Chaitanya Singh
Published on : 02 May, 2022, 5:58 pm
The Supreme Court on Friday held that medical students who studied abroad cannot
be granted provisional registration to practice in India without undergoing practical
clinical training [The National Medical Commision v. Pooja Thandu Naresh and ors].
A Bench of Justices Hemant Gupta and V Ramasubramanian held that the decision of
the National Medical Commission to not grant provisional registration to such
students without clinical training was not arbitrary.
"...without practical training, there cannot be any Doctor who is expected to take
care of the citizens of the country," the judgment stated.
However, the Court noted that students who have completed their curriculum
according to the certificate granted by the concerned foreign institutes are "national
resources" who should be utilised to augment the national health infrastructure.
"Therefore, such national resource cannot be permitted to be wasted which will affect
the life of young students, who had taken admission in the foreign Institutes as part of
their career prospects. Therefore, the services of the students should be used to
augment health infrastructure in the country," the judgment stated.
Therefore, the top court held that such students must undergo clinical training for the
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which are identifiedApprentice Lawyer Medical
by the National Viewpoint
Commission
हिं दी ಕನ್ನಡ
(NMC).
The judgment was passed in an appeal moved by the NMC against the decision of the
Madras High Court which allowed the respondent-students who joined MBBS courses
in medical colleges in the People's Republic of China, to be provisionally registered
and undergo internship.
The students claimed that they had completed nine semesters of their course,
including the clinical course on campus during the ninth semester. However, due to the
outbreak of the COVID-19 pandemic, the clinical training for the subjects of
Ophthalmology, Otorhinolaryngology and Nuclear Medicine in the 10th Semester was
done online. Subsequently, they were given their MBBS degrees by the foreign
institute.
The respondent students claimed that they are qualified doctors who had cleared the
Indian Screening Test. Despite this, the NMC declined to grant them provisional
registration. However, they admitted that they had not undergone practical and
clinical training in the physical form, but had undergone the course through online
mode for the entire duration. This satisfied the requirement under Regulation 4(3) of
the Screening Regulations, it was contended.
NMC contended that in terms of the Regulations, a student has to study the medical
course in the same institute located abroad for the “entire duration”. Moreover, it was
argued that clinical training cannot be imparted through online mode, as it involves
diagnosis and physical interactions with patients.
The Supreme Court held that the NMC is not bound to grant provisional registration
to the respondent as she has not completed the required clinical training. Qualifying
under the Screening Regulations is not proof to showcase clinical experience, the
Court said.
"The Screening examination is based upon Optical Mark Reader (OMR) answers and
has no correlation with any practical training. We do not find that in terms of the
Screening Regulations, the students are entitled to the provisional registration," the
top court observed.
Even considering the pandemic situation which forced students to return to India
before completing their clinical training abroad, the Court held that they cannot be
granted registration without practical training
granted registration without practical training.
"No doubt, the pandemic has thrown new challenges to the entire world including the
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but granting Dealstreet Interviews
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completeLawyer Viewpoint
internship to a student who
हिं दी ಕನ್ನಡ
has not undergone clinical training would be compromising with the health of the
citizens of any country and the health infrastructure at large," the Bench held.
However, Senior Advocate Vikas Singh, appearing on behalf of the NMC, submitted
that in light of the Ukraine crisis and the pandemic, there are many students who are
suffering and, therefore, their interest must be safeguarded without compromising on
the quality of education.
Taking note of the submission, the Bench passed the following directions to the NMC
while disposing the appeal:
1. Frame a scheme within two months for Indian medical students studying in foreign
countries who are not able to complete their clinical training outside India due to
inadvertent circumstances, so that the quality of medical education is not
compromised. Training must be undergone in Indian medical colleges which must
be identified by the NMC. The duration and the cost shall also be determined by
the NMC which shall be borne by the students.
2. It shall be open to the appellant to test the candidates in the scheme so framed in
the manner within next one month, which it considers appropriate as to satisfy that
such students are sufficiently trained to be provisionally registered to complete
internship for 12 months.
Senior Advocate S Nagamuthu appeared for the respondents.
[Read Judgment]
Attachment
PDF The National Medical Commision v. Pooja Thandu Naresh and ors. -
judgment.pdf
Preview
Supreme Court of India Doctors Foreign Medical Graduates
National Medical Commission
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Muslim woman moves Delhi High Court opposing
petition to declare Talaq-ul-Sunnat
unconstitutional, anti-Shariat
The woman has argued that the practice of Talaq-ul-Sunnat is an Essential
Religious Practice and is therefore entitled to protection under Article 25(1) of the
Constitution.
Tl Ul S t
Talaq Ul Sunnat
Prashant Jha
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Published on : 02 May, 2022, 5:58 pm
A Muslim woman has approached the Delhi High Court opposing a petition seeking a
declaration that the practice of Talaq-Ul-Sunnat is unconstitutional.
An impleadment application has been filed by a 35-year-old woman named Qurrat ul
Ain Latif in a pending plea filed by another Muslim woman named Reshma, who has
challenged the provision of Talaq-Ul-Sunnat as unconstitutional and anti-Shariat as it
gives a Muslim husband absolute discretion to divorce his wife without prior notice.
A Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla
issued notices on this application on Monday and listed the matter for further hearing
on August 23.
The applicant has argued that the practice of Talaq-ul-Sunnat is an Essential Religious
Practice and is therefore entitled to protection under Article 25(1) of the
Constitution.
It has been stated that the courts have held that Muslim marriage is a contract, and
therefore, this principle of optional termination (Talaq) of marriage is necessary.
“To not be able to annul/terminate the contract at a valid instance would be grave
injustice to either party and against the law of contract,” it said.
Latif said that she had herself suffered from a bad marriage but, at the same time,
benefited from the operation of Islamic Law which permits divorce without recourse
to the formal judicial process.
The application argued that Reshma’s petition is not about empowering women, but
seeks to disempower men and that it failed to “appreciate that so called power of men
is already severely controlled and constrained – which forms law of the land”.
“It is stated that there is equality between the sexes, and the manner in which the right
to end the relationship operates works differently. Thus, the unqualified right of man
in Islamic law is called Talaq Sunnat/Ahsan, and the unqualified right of the wife is
called the right to seek "Khula". The right of the wife to seek khula is unconditional and
th h b d t f t di if th if t h i ht/kh l Th th i
the husband cannot refuse to divorce if the wife asserts her right/khula. Thus, there is
complete parity in the power to divorce and the difference lies only in the way of
operation.
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husband can delegate
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to divorce which is recognized as talaq-e-tafweez or talaq by delegation.”
The application also challenged the maintainability of the main petition, stating that
the reliefs sought are in the domain of the legislature and it is settled law that there
cannot be any direction to legislate, directly or indirectly.
Advocates Talha Ur Rahman and Sitwat Nabi and argued by Shahrukh Alam filed the
application.
Meanwhile, after it was pointed out that the Central government was yet to file its
response to the main petition even though notice was issued in January, the Court has
now given the government a last opportunity to bring its counter affidavit on record.
The case will now be heard along with another petition filed by Reshma dealing with
the issue as to whether a Muslim man has to obtain written permission from his
wife/wives before contracting another marriage. Notice was issued in that petition on
Monday as well.
Also Read
Delhi High Court seeks response from Central govt on plea to declare
'Talaq-Ul-Sunnat' unconstitutional
Delhi High Court Muslim Law Shariat Talaq-Ul-Sunnat
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