Full Judgment
W.P.(C) No. 22112 of 2021 -1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 10TH DAY OF NOVEMBER 2021 / 19TH KARTHIKA, WP(C) NO. 22112 OF 2021 PETITIONER/S: JOHN JOSE AGED 54 YEARS S/O. JOSEPH, 290A(6/306F) CHIRAMEL, CHURAKKATUKARA, THRISSUR, KERALA-680 555 BY ADVS. V.JOHN MANI S.JAYANT JACKSON JOHNY VARGHESE SABU P.V.CHERIAN SETHULAKSHMI K.K. RESPONDENT/S:
1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH & FAMILY WELFARE , NEW DELHI-110001 2 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001 3 CHAIRMAN, KERALA STATE DISASTER MANAGEMENT AUTHORITY, OBSERVATORY HILLS, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM-695 033 SRI.K.GOPALAKRSHNA KURUP, ADVOCATE GENERAL, SRI.V.MANU SR GP, SRI.P.VIJAYAKUMAR, ASG THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 22112 of 2021 -2-
JUDGMENT
S. Manikumar, C.J. Instant public interest writ petition is filed by the petitioner for the following reliefs:- “(i) Issue a writ in the nature of Certiorari or such other writ, order of direction directing to quash Exhibit P1 order to the extend demanding mandatory COVID vaccination as a precondition to admission to enter schools, colleges, training institutions and other governmental institution.
(ii) Issue a writ in the nature of Mandamus or such other
writ, order or direction directing the 3 rd respondent to make modifications in Exhibit P1 order to the extent that only a person who has not took two COVID vaccine doses must be allowed to enter schools, colleges, training institutions and other governmental institution subject to such condition to be fixed.
(iii) Issue a writ of mandamus or any other writ or
direction in the nature thereof directing the 3 rd respondent to declare that personnel's with COVID 19 negative certificate shall be allowed to enter governmental institutions, including schools, colleges, and theaters and auditoriums.” W.P.(C) No. 22112 of 2021 -3-
2. Short facts leading to the filing of the writ petition are as
under:- According to the petitioner, his wife is working as an Assistant Professor in Government Engineering College, Thrissur, in Electrical Engineering Department, and his son is studying in the very same College for Civil Engineering, fourth semester. As per the program, vaccine has to be inoculated to citizens in different phases to prevent the spread of Covid - 19. The Chairman, Kerala State Disaster Management Authority, Thiruvananthapuram, the 3rd respondent, on 02.10.2021, issued G.O.(Rt.) No. 669/2021/DMD. Petitioner has submitted that as per clause (i) of the abovesaid Government order, regular classes in colleges and training institutions for all the batches of students, who have taken two doses of Covid - 19 vaccines, can be started from 18.10.2021, engaging the teachers/trainers/other staff, who have taken two doses of Covid - 19 vaccine. As per clause (ii) of the order, requirement of producing Covid - 19 negative certificate for entry into institutions in the State, wherever insisted, shall be done away with, and only proof of two doses of Covid - 19 vaccine be insisted for any such purpose. W.P.(C) No. 22112 of 2021 -4-
By incorporating clause (ii) to the Government order
02.10.2021, the common man, who has not taken two vaccinations, are denied entry into a Governmental institution, whereas the earlier option of producing Covid negative certificate was taken away by the introduction of the new order. Petitioner has further submitted that the success rate of the vaccines against Covid - 19, is still has to be determined. In a large number of cases, persons who are administered with two doses of vaccines are detected with Covid - 19 disease and many succumbed to the disease even after getting two doses of vaccine. Petitioner has also submitted that in PIL No. 6 of 2021 before High Court of Meghalaya, orders of Deputy Commissioners, which made mandatory for shopkeepers, vendors, local taxi drivers and others, to get themselves vaccinated before they can resume their business, was challenged. The High Court of Meghalaya held that the directions at large are provided with an option of making an informed choice and similar view has been taken by various High Courts as well. To clarify the doubts of a common man, with respect to Covid - 19 vaccination, Ministry of Health and Family Welfare, New Delhi, W.P.(C) No. 22112 of 2021 -5- the 1st respondent, has opened a web portal in their site and answers are given to the queries. As per the answers given by the 1 st respondent, in removing the doubts with respect to Covid - 19 vaccination, it is clear that taking vaccination is only voluntary, and the Ministry has affirmed that it requires time to tell about the efficacy of vaccines. Petitioner has contended that Article 21 encompasses within its fold, right to health, as a fundamental right. By that same analogy, right to health care, which includes vaccination, is a fundamental right. However, vaccination by force or being made mandatory by adopting coercive methods, vitiates the very fundamental purpose of the welfare attached to it. Clause (ii) of Exhibit P1 notification brought about an end to submission of Covid - 19 negative certificate, and paved way to inoculation of two doses of Covid preventive vaccinations for entering into any Governmental institutions. Such a scenario restricts entry of a common man, who has not taken any vaccines, to any Governmental institutions. W.P.(C) No. 22112 of 2021 -6- Petitioner has further contended that clause (v) of Exhibit P1, in a way infringe the Right to Education envisaged under Article 21A of Constitution of India. Article 21A enumerates that the State shall provide free and compulsory education to all children of the age of six to fourteen years, in such manner as the State may. If any student or his/her parents want to avoid themselves from being vaccinated, there is no option for them to choose so, as it curtail their educational rights. Petitioner has also contended that the judgment by the war crimes tribunal at Nuremberg laid down 10 standards to which physicians must conform while carrying out experiments on human subjects in a new code and that is now accepted world wide. It enumerates that the voluntary consent of human subject is absolutely essential for medical experiments on human beings.
3. Grounds on the basis of which reliefs are sought for by the
petitioner, are as under:- A. Whether to take vaccine or not is to be decided by the person who is taking it and Government cannot make any policy or decision that is infringing a person's right to privacy. As of now, the W.P.(C) No. 22112 of 2021 -7- efficacy of vaccine is not scientifically proved. Number of persons who have administered the two doses of vaccine are infected with Covid disease and that it self-shows that the success rate of vaccine is not perfect. B. Article 19(g) of the Indian Constitution envisages the right to practice any profession, or to carry on any occupation, trade or business. In case of mandatorily demanding workers and employees of cinema theaters and auditoriums, including indoor auditorium, and teachers of colleges and training institutions, from getting vaccinated against Covid - 19, is illegal and infringing the fundamental right envisaged under Article 19(g). C. The act of 3rd respondent in issuing Exhibit P1 order, denies the chances of common man to themselves undergo Ayurvedic, Homeopathic or Siddha treatment. Ministry of AYUSH, in its guidelines, issued an advisory to States across the country, recommending the use of a traditional Homeopathic drug, Arsenic Album 30, as a form of preventive medicine against Covid - 19. Its prophylactic use has been advised in States like Karnataka, Tamil Nadu, Kerala, and Maharashtra, and in some places, it has been W.P.(C) No. 22112 of 2021 -8- used in high-risk areas. In places like Bhopal, claims were raised when Doctors said that mild Covid cases were successfully treated with Homeopathy. D. No alternative option was provided to citizens other than taking vaccinations for entering a Governmental institution, attending classes by students, and for entering auditoriums and cinema theaters. Exhibit P1 order is promulgated in a way that demands compulsory vaccination against Covid to visit Governmental institutions, cinema halls and theaters, without getting a proper result from the vaccines. E. Every citizen has a legal right to autonomy and self-determination enshrined within Article 21 of the Indian Constitution. In K.S. Puttaswamy and Another v. Union of India and Others [2017 SCC (10) 1], it was held that privacy is a Constitutionally protected right, which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. The limitations which operate on the right to life and personal liberty would operate on the right to privacy. Any curtailment or deprivation of that right would have to take place under a regime of law. It is W.P.(C) No. 22112 of 2021 -9- further held that privacy represents the core of the human personality and recognizes the ability of each individual to make choices, and to take decisions, governing matters intimate and personal. If that be so, every citizen has a choice to take a decision even in the matter of vaccination and he is the ultimate authority to decide as to whether to take vaccine or not. No Government can coercively, or using force, direct its subjects to mandatorily take vaccines, as it is the discretion of an individual, whether to take vaccine or not. F. In Shafin Jahan v. Asokan K.M and Others [AIR (2018) SC 1933], it was held that choice of woman has to be given primacy while issuing a writ of Habeas Corpus, High Court cannot hold that parental love or concern can be allowed to fluster the right of choice of an adult in choosing a man to whom she gets married. G. In Common Cause (A Regd Society) v. Union of India and Another [AIR (2018) SC 1665], it was held that an adult human being having mental capacity to take an informed decision has right to refuse medical treatment including withdrawal from life saving devices. Right to live with dignity also includes W.P.(C) No. 22112 of 2021 -10- smoothening of process of dying in case of a terminally ill patient or a person in PVS with no hope of recovery. In Anuj Garg and Others v. Hotel Association of India and Others [2008 (3) SCC 1],
held legislation encapsulating majoritarian impulses rooted in
biological, social and cultural determinants and moralistic traditions which impinge upon individual autonomy deserve deeper and heightened judicial scrutiny. It was further held that the State must ensure freedom to pursue varied opportunities, without discriminating on basis of sex, race, caste or any other like basis. There should be a reasonable relationship of proportionality
between the means used and the aim pursued. It was further held
that Parens Patriae power of State is subject to Constitutional challenge on the ground of infringement of right to privacy as well. H. In Samira Kohli v. Dr. Prabha Manchanda and Another [2018
(1) KHC 554], it was held by this Court that informed consent of a patient is necessary for surgical procedure involving removal of reproductive organs.”
4. On this day, when the matter came up for further hearing,
Mr. John Mani V., learned counsel for the petitioner, submitted that W.P.(C) No. 22112 of 2021 -11- pending disposal of the writ petition, I. A. No. 1 of 2021 has been filed to accept additional documents marked as Exhibit P6, P7 and P7 (a) to (d), as additional Exhibits to the writ petition.
5. Reasons assigned in the supporting affidavit are as under:-
“2. The above Writ Petition is filed seeking to quash Exhibit P1 order to the extend demanding mandatory COVID vaccination as a precondition to enter schools, colleges, training institutions and other governmental institution.
3. Kerala State Higher Educational Department on
of Higher Educational Institutions including professional colleges in the state. In the said order the 15 th criteria states that 'Teachers and students who are reluctant to take vaccination need not be allowed inside the campus'. A true copy of the Order No. produced herewith and marked as Exhibit P6.
4. As per the daily bulletin published in official website
of Covid 19 outbreak control and prevention State cell Health & Family Welfare Department, Government of Kerala, Covid 19 status is published in the daily bulletin and as per data of 19.10.2021, among 7643 positives, 1881 vere vaccinated with single dose and 2635 were fully vaccinated and 1947 persons had no history of vaccination. A true copy of extract of daily bulletin published in COVID 19 outbreak control and prevention State
W.P.(C) No. 22112 of 2021 -12- cell Health & Family Welfare Department, Government of Kerala for 19-10-2021 is produced herewith and marked as Exhibit P7.
5. As per the daily bulletin published in official website
of COVID 19 outbreak control and prevention State cell Health & Family Welfare Department, Government of Kerala dated 18- 10-2021 among the 6676 positives, 1636 were vaccinated with single dose and 2217 were fully vaccinated and 1804 persons had no history of vaccination. A true copy of extract of daily bulletin published in COVID 19 outbreak control and Prevention State cell Health & Family Welfare Department, Government of Kerala for 18-10-2021 is produced herewith and marked as Exhibit P7(a).
6. As per daily bulletin published in official website of
COVID 19 outbreak control and prevention State cell Health & Family Welfare Department, Government of Kerala dated 17-10- 2021, among 7555 positives, 1891 were vaccinated with single dose and 2375 were fully vaccinated and 2003 persons had no history of vaccination. A true copy of extract of daily bulletin published in COVID 19 outbreak control and prevention State cell Health & Family Welfare Department, Government of Kerala for 17-10-2021 is produced herewith and marked as Exhibit P7(b).
7. As per daily bulletin published in official website of
COVID 19 outbreak control and prevention State cell Health & Family Welfare Department, Government of Kerala dated 16-10- 2021, among 7995 positives, 1968 were vaccinated with single W.P.(C) No. 22112 of 2021 -13- dose and 2561 were fully vaccinated and 2176 persons had no history of vaccination. A true copy of extract of daily bulletin published in COVID 19 outbreak control and prevention State cell Health & Family Welfare Department, Government of Kerala for 16-10-2021 is produced herewith and marked as Exhibit P7(c).
8. As per daily bulletin published in official website of
COVID 19 outbreak control and prevention State cell Health & Family Welfare Department, Government of Kerala dated 15-10- 2021, among 8867 positives, 2331 were vaccinated with single dose and 2797 were fully vaccinated and 2300 persons had no history of vaccination. A true copy of extract of daily bulletin published in COVID 19 outbreak control and prevention State cell Health & Family Welfare Department, Government of Kerala for 15-10-2021 is produced herewith and marked as Exhibit P7(d).
9. The statistical data itself proves that COVID
vaccination itself is not effective in tackling COVID 19 diseases. The number of persons who got infected with covid 19 after vaccinating two doses of covid vaccine is more than persons who had no history of vaccination.
10. The Exhibit produced along with this Petition is the
true copy of the original document and the same may be marked as Exhibit P6, Exhibit P7 and Exhibit P7 (a) to (d) to the writ petition. Exhibit P6, Exhibit P7and Exhibit P7 (a) to (d) is relevant and material document for the proper disposal of the W.P.(C) No. 22112 of 2021 -14- above Writ Petition.
11. It is most humbly submitted that for an expeditious
disposal of the writ petition, it is highly necessary that the petitioner may be permitted to implead the following as Additional respondents No.4 to 7 in the writ petition.
4. State of Kerala, represented by Principal Secretary, Health and Family Welfare Department, Government Secretariat, Thiruvananthapuram- 695001.
5. Chief Secretary, Department of General Administration, Government of Kerala, 2 nd Floor, North Block, Secretariat, Thiruvananthapuram- 695001.
6. Additional Chief Secretary, Department of Higher Education, 4th Floor, Annex-II, Secretariat, Thiruvananthapuram-695001.
7. Principal Secretary, Revenue and Disaster Management, State Relief Commissioner and Convener, Kerala State Disaster Management Authority, Observatory Hills, Vikas Bhavan P.O, Thiruvananthapuram-695033.
12. Since the above proposed respondents are necessary
party in this writ petition and this Hon'ble Court may be pleased to permit the petitioner to implead additional respondents as additional respondents No. 4 to 7 in the above writ petition, in the interest of justice.
13. For the reasons stated above, it is most humbly prayed that this honorable court may be pleased to permit the petitioner to implead the above named as Additional Respondents W.P.(C) No. 22112 of 2021 -15-
No.4 to 7. It is submitted that no prejudice will be caused to the respondents in the Writ Petition. Hence a separate application for the above said purpose may be allowed or else the petitioner will be put to irreparable loss and injury.
14. Hence in the interest of justice, it is also humbly prayed that this Hon'ble court may be pleased to accept the document marked Exhibit P6, Exhibit P7 and Exhibit P.7 (a) to
(d) as additional Exhibits to the Writ Petition and orders may be passed accordingly.
Separate petitions seeking the above reliefs are filed herewith and same maybe allowed in the interest of justice. If the same is not allowed, the petitioner will be put to irreparable loss, injury and hardship.”
6. Exhibit P6 is the instructions issued by the Higher Education
(K) Department, Thiruvananthapuram, dated 13.10.2021, issuing
common guidelines to all the Higher Educational Institutions, including Professional Colleges, for functioning, with effect from 18.10.2021, and the same is reproduced:- “File No. HEDN-K1/157/2021-HEDN
Summary
Higher Education Department - Issuance of Common guidelines
to all Higher Educational Institutions including Professional colleges for functioning with effect from18.10.2021. W.P.(C) No. 22112 of 2021 -16- Higher Education (K) Department G. O. (Rt) No. 1374/2021/HED Date: Thiruvananthapuram 13/10/2021
ORDER
It has been ordered that all higher educational institutions including professional colleges functioning from 18-10-2021 shall be in accordance with following common guidelines;
1. All higher education institution including professional colleges shall start its complete functioning from 18-10-2021.
2. Classes of Post-graduation courses may be conducted in a way
by including all students for the classes. Whereas the classes for undergraduate courses if needed should be conducted in different batches either on alternate days or regularly in such places large enough to accommodate them.
3. Practical classes for science courses are allowed.
4. All Classrooms, Library, Laboratory, Toilets and sickroom should be properly sanitized as colleges being part of reopening higher educational institution.
5. The college management should ensure that the students are following the Covid protocol in classrooms. Further ensure that adequate quantity of hand wash, sanitizer, masks and thermal scanner are available.
6. Special Camps for vaccine drive should be organized in the institutional level to provide free vaccination to staff and students of the institution. W.P.(C) No. 22112 of 2021 -17-
7. Time schedule for classes is preferred from 8.30 to 1.30 for
one schedule, else the college council may decide to conduct classes in any of the following schedules 9 to 3; 9.30 to 3.30; 10 to 4. The time schedule may be selected by colleges according to their convenience.
8. Engineering colleges can continue to take classes for 6 hours everyday.
9. Both teaching and non teaching staff should be present in college.
10. Hostels of students shall start functioning. The warden or head of the institution should ensure that the inmates are following social distancing and Covid protocol and regulation therewith.
11. For ensuring the smooth functioning of regular classes a
"Covid Jagratha/Action committee" may be formed by including Teacher, Non teaching staff, students, parents, representatives of local self-government and health departments and police.
12. Students should follow Covid protocol both inside and outside the campus.
13. Ensure that pregnant and breastfeeding students are vaccinated before they are attending classes.
14. Students who are unable to take vaccine as they fall under 18 years of age and students who have taken first dose of vaccine and waiting for 2nd dose shall be permitted to enter the college. W.P.(C) No. 22112 of 2021 -18- However ensure that the family members of these students having age above 18 years have at least taken the first dose of the vaccine.
15. Teachers and students who are reluctant to take vaccination need not be allowed inside the campus.
16. It is advised that those students suffering from any ailments may not enter the campus for the first two weeks.
17. It is advised that differently abled students may not enter the college at least for the first two weeks.
18. The college management should co-ordinate with the state
health department to conduct special vaccine drive in the institution level and the arrangement for the vaccination drive should be started from the pooja holidays. (As per the Order of Governor) Sajukumar N Joint Secretary”
7. Exhibit P7 series are the details relating Covid - 19 Outbreak Control and Prevention State Cell, Health and Family Welfare Department, Government of Kerala.
8. Accepting the reasons stated, I. A. No. 1 of 2021 is ordered.
9. I. A. No. 2 of 2021 has been filed to permit the petitioner to W.P.(C) No. 22112 of 2021 -19- implead additional respondent Nos. 4 to 7 in the writ petition.
10. As we have already considered similar issues raised in our
detailed judgment in W. P. (C) No. 16614 of 2021 dated 17.09.2021, we are of the view that there is no need to implead additional respondents in this writ petition.
11. Hence I. A. No. 2 of 2021 is dismissed.
12. I. A. No. 3 of 2021 is filed to stay the operation of Exhibit
P1 and Exhibit P6 to the extent of preventing entry to the persons who are not vaccinated from schools, colleges, training institution and other Governmental institution, pending disposal of the instant writ petition.
13. While adverting to a similar challenges, which includes
enforcement of fundamental rights to the citizens to enter into a place of the choice, and the rider in clause (4) of G. O. (Rt) No. placed, after considering the rival submissions, statutory provisions of the Disaster Management Act, 2005, rights guaranteed under Articles 15, 19 and 21 of the Constitution of India, Government Orders issued W.P.(C) No. 22112 of 2021 -20- periodically, and with regard to the restrictions imposed in the State as a part of Covid - 19, daily vaccination bulletin issued by the Outbreak Control and Prevention, State Cell, Health and Family Welfare Department, Government of Kerala and details of the vaccination done in the State, this Court, by judgment in W. P. (C) No. 16614 of 2021 dated 17.09.2021, at paragraphs Nos. 42 to 62, held as follows:-
“42. Going by the pleadings putforth by the petitioners, what we could gather is that, under Article 226 of the Constitution of India, the petitioners require this Court to replace/re-write the orders/guidelines issued by the Authority under the Disaster Management Act, 2005. We cannot pass any such orders/directions, as sought for by the petitioners, since no expertise in that regard is available to this Court or this Court is not expected to discuss the subject issue with such experts and modify the Government orders impugned. If we do so, we would be transforming ourselves into a legislative body transgressing the Constitutional mandate of the separation of powers by and between the legislature, executive and the judiciary. To put it otherwise, the power exercised by this Court is circumscribed normally and ordinarily to the extent of judicial review in administrative matters alone.
43. Implementation of the provisions of Act, 2005, and Act 4 of 2021 is the duty and obligation of the State Government and the authority under the Disaster Management Act, 2005. W.P.(C) No. 22112 of 2021 -21-
When the State and other authorities are empowered by the provisions of Act, 2005 and Act 4 of 2021, to implement the same, we are of the view that the authorities concerned have a duty and obligation under the provisions of the Constitution, to ensure that the citizens are guided properly, so as to be alert them timely with respect to the emergent situation prevailing in the nation as a whole and the State specific, and to regulate and restrict their movements in the larger interest of the public, may be even diluting the individual rights and interests with the fundamental object of public safety in the extraordinary circumstances prevailing in the community.
44. Penal provisions in the Kerala Epidemic Diseases
Act, 2021 are incorporated with the avowed object of regulating and restricting people from violating the provisions of Act 4 of 2021 and they are deterrent in nature though appears to be punitive. In order to implement the provisions of the Act effectively, such measures are also required to be undertaken by the State Government and the authority under the Disaster Management Act, 2005 and Act, 2021.
45. When action is taken by the State Government, in the
larger interest of the citizens, it can never be said that the fundamental rights of the citizens guaranteed under Articles 19 and 21 of the Constitution of India are violated. This we say because, there is a clear empowerment under clause (2) of Article 19, to make reasonable restrictions by introducing law in the larger interest of the public, and further, Article 21 of the Constitution makes it clear that no person shall be deprived of his
W.P.(C) No. 22112 of 2021 -22- life or personal liberty except according to the procedure established by law, which also means, when the larger interest of the citizens is a concern for the State and authority under the Act, 2005, it is imperative on the part of the State Government to ensure that appropriate orders/ guidelines are put in place, in
order to protect the life and personal liberty of the citizens, rather
than making individualistic approach, which if done, in our opinion, would be detrimental to the interest of the citizens at large.
46. Now, looking at the alleged objectionable clause of
the Government order dated 10.08.2021, we are of the view that it is not an absolute bar or prohibition, interfering with the freedom of movement of the citizens, but it is a reasonable restriction imposed by the State Government, for protecting the interest of larger community from COVID-19 pandemic.
47. Going through the pleadings, the petitioners have
raised a contention that even the scientists and experts in the field are making different opinions, at various times, as regards spread of COVID-19 pandemic. We are of the considered view that the experts and scientists are at the evaluation stage and they themselves are conscious about the spread of Coronavirus. In
order to prevent the spread of COVID-19 pandemic, the experts
are making necessary and adequate advice, in the interest of the larger public, while attempting to attain perfection, to curb the menace caused by the disease. That fluctuating evaluation process can never be criticized as bad or irresponsible, but it can only be seen as a progressive method adopted, to arrive at a W.P.(C) No. 22112 of 2021 -23- definite conclusion.
48. It may also be noted that there would be different
theories and evaluations by the scientists and experts in respect of the disease. But, ultimately, all the evaluations drawn up by the scientists and specialised organisations would be utilised for the purpose of arriving at a definite and conclusive result, so as to protect the interest of the citizens at large. The Hon'ble Supreme Court had occasion to consider the responsibility cast upon the Government in the present situation, in the context of various vulnerable circumstances.
49. In IN RE Alarming Newspaper Report Regarding
Kanwar Yatra in the State of UP, [order dated 19.07.2021 in SMW (C) No. 5 of 2021], the Hon'ble Apex Court issued certain directions, reminding the authorities at all levels, to have regard to Article 144 of the Constitution of India and ensure that any untoward incident which directly affect the lives of the people will be looked upon sternly and prompt action be taken immediately, reminding the authorities, by quoting a paragraph from the order dated 16.07.2021, which reads thus:
“We are of the view that this is a matter which concerns everyone of us as citizens of India, and goes to the very heart of Article 21 of the Constitution of India, which has a pride of place in the fundamental rights Chapter of our Constitution. The health of the citizenry of India and their right to “life” are paramount. All other sentiments, albeit religious, are subservient to this most basic fundamental right.”
50. In fact, the situation in Kerala during Bakrid W.P.(C) No. 22112 of 2021 -24-
celebration in July, 2021, on the basis of a notification issued by the State Government, has invited the attention of the Hon'ble Supreme Court, and taking into account the order issued by the State Government, relaxing the guidelines due to a celebration, an order has been passed in Suo Motu Writ Petition No.5 of 2021 dated 20.07.2021, the relevant portions of which, are reproduced hereunder:
“Even a cursory look at this Notification will show that all non-essential shops, which were allowed in only Category A, are now allowed to Category A to C. In Category D, however, all these shops were allowed on 19th July, 2021 i.e. Monday only, despite the most severe restrictions being placed in Category D, i.e. throughout the week, the restrictions placed on Saturdays/Sundays were to operate. Another thing that one gets from the aforesaid Notification is that the public are cautioned that as far as possible, the persons visiting shops and other establishments may belong to those with at least one dose of vaccine/COVID recovered category and follow strict COVID protocols.
Paragraphs 9 to 11 of the affidavit read with this Notification disclose that the State Government has given in to Associations of traders who represented before the Government that they have stocked up goods for the purpose of Bakrid very early. The State also blithely records that the opening of shops will strictly follow Covid protocols and they are ready to follow additional regulations ordered by the State, if any.
What is extremely alarming is the fact that in Category D, where infections are the highest i.e. 15%, a full day of relaxation has been granted, which was yesterday. It is then stated that, as far as possible, the persons visiting shops and other establishments may belong to those with at least one dose of W.P.(C) No. 22112 of 2021 -25- vaccine/COVID recovered category and follow strict COVID protocols, echoing paragraph (vi) of the 17th July, 2021 Notification, along with the Chief Minister’s appeal.
The aforesaid facts disclose an alarming state of affairs. To give in to pressure groups so that the citizenry of India is laid bare to a nationwide pandemic discloses a sorry state of affairs. Even otherwise, homilies such as “as far as possible” and assurances from traders without anything more, do not inspire any confidence in the people of India or this Court. We may only indicate that this affidavit discloses a sorry state of affairs as has been stated hereinabove, and does not in any real manner safeguard the Right to Life and Health guaranteed to all the citizens of India under Article 21 of the Constitution of India. It may also be pointed out that the relaxation for one day to a Category D area was wholly uncalled for.”
51. Accordingly, the State was directed to heed to Article
21 r/w. Article 144 of the Constitution of India and the law laid down in the orders passed in the matter of 'Kanwar Yatra', dated 14.07.2021, 16.07.2021 and 19.07.2021. It was also specifically observed in the order dated 20.07.2021 in Suo Motu Writ Petition No.5 of 2021 that pressure groups of all kinds, religious or otherwise, cannot in any manner, interfere with this most precious fundamental right of all the citizens of India. Even the State Government was cautioned that if, as a result of the notification dated 17.07.2021, any untoward spread of Covid-19 disease take place, any member of the public may bring it to the notice of the Hon'ble Apex Court, after which, the Court would take necessary action against those, who are responsible.
W.P.(C) No. 22112 of 2021 -26-
52. After taking into account the observations and
directives issued by the Hon'ble Supreme Court and bearing in mind the concern of the larger public, to be protected under Article 21 of the Constitution of India by all authorities, the State Government have issued notifications dated 04.08.2021 and 10.08.2021, which are under challenge in these writ petitions. Therefore, the alleged objectionable clauses contained under the impugned orders, issued under the provisions of the Disaster Management Act, 2005 can never be said to be issued by the State Government, without sufficient or adequate reasons and the restrictions, can only be viewed as reasonable.
53. On the aspect that the members of the Constitutional
Courts are not public health experts, the Hon'ble Supreme Court in IN RE: Distribution of Essential Supplies and Services during Pandemic [order dated 31.05.2021 in Suo Motu Writ Petition (Civil) No.3 of 2021] held as under:
“15. We had clarified in our order dated 30th April 2021, that in the context of the public health emergency with which the country is currently grappling, this Court appreciates the dynamic nature of the measures. Across the globe, the executive has been given a wider margin in enacting measures which ordinarily may have violated the liberty of individuals, but are now incumbent to curb the pandemic. Historically, the judiciary has also recognized that constitutional scrutiny is transformed during such public health emergencies, where the executive functions in rapid consultation with scientists and other experts. In 1905, the Supreme Court of the United States in Jacobson v. Massachusetts 197 U.S. 11 (1905), considered a constitutional liberty challenge to a compulsory vaccination law that was enacted to
W.P.(C) No. 22112 of 2021 -27- combat the smallpox epidemic. Justice Harlan had noted the complex role of the government in battling public health emergencies in the following terms:
“..the State may invest local bodies called into existence for purposes of local administration WP(C) Nos.16614 & appropriate way to safeguard the public health and the public safety... While this court should guard with firmness every right appertaining to life, liberty or property as secured to the individual by the Supreme Law of the Land, it is of the last importance that it should not invade the domain of local authority except when it is plainly necessary to do so in order to enforce that law. The safety and the health of the people of Massachusetts are, in the first instance, for that Commonwealth to guard and protect…… So far as they can be reached by any government, they depend, primarily, upon such action as the State in its wisdom may take, and we do not perceive that this legislation has invaded any right secured by the Federal Constitution.”
The Supreme Court of United States, speaking in the wake of the present COVID-19 pandemic in various instances, has overruled policies by observing, inter alia, that “Members of this Court are not public health experts, and we should respect the
judgment of those with special expertise and
responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten” [Roman Catholic Diocese of Brooklyn, New York v. Cuomo, 592 U.S., 141 S. Ct. 63] and “a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that
W.P.(C) No. 22112 of 2021 -28- evidence, courts should expect policies that more carefully account for constitutional rights [Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada, et al, 140 S.Ct. 2603 (Mem) (Justice Alito
Dissenting Opinion)]
16. Similarly, courts across the globe have
responded to constitutional challenges to executive policies that have directly or indirectly violated rights and liberties of citizens. Courts have often reiterated the expertise of the executive in managing a public health crisis, but have also warned against arbitrary and irrational policies being excused in the garb of the “wide latitude” to the executive that is necessitated to battle a pandemic. This Court in Gujarat Mazdoor Sabha v. State of Gujarat [AIR 2020 SC 4601], albeit while speaking in the context of labour rights, had noted that policies to counteract a pandemic must continue to be evaluated from a threshold of proportionality to determine if they, inter alia, have a rational connection with the object that is sought to be achieved and are necessary to achieve them.
17. In grappling with the second wave of the
pandemic, this Court does not intend to second-guess the wisdom of the executive when it chooses between two competing and efficacious policy measures. However, it continues to exercise jurisdiction to determine if the chosen policy measure conforms to the standards of reasonableness, militates against manifest arbitrariness and protects the right to life of all persons. This Court is presently assuming a dialogic jurisdiction where various stakeholders are provided a forum to raise constitutional grievances with respect to the management of the pandemic. Hence, this Court would, under the auspices of an open court judicial process, conduct deliberations with the executive where justifications for existing policies would be elicited and evaluated to assess whether they survive constitutional scrutiny.”
W.P.(C) No. 22112 of 2021 -29-
54. From the above, it is clear that what is paramount is the life of the citizens at large, rather than individual rights enjoyed by the citizens under Part III of the Constitution.
55. In this context, Mr. T. B. Hood, learned Special
Government Pleader, has invited our attention to the decision of the Hon'ble Supreme Court in Mr. 'X' v. Hospital 'Z' reported in (1998) 8 SCC 296, wherein the issue relating to right to live - right to privacy conferred under Article 21 of the Constitution of India was considered and it was held as under: “26. Right of Privacy may, apart from contract, also arise out of a particular specific relationship which may be commercial, matrimonial, or even political. As already discussed above, Doctor- patient relationship, though basically commercial, is, professionally, a matter of confidence and, therefore Doctors are morally and ethically bound to maintain confidentiality. In such a situation, public disclosure of even true private facts may amount to an invasion of the Right of Privacy which may sometimes lead to the clash of person's "right to be let alone" with another person's right to be informed.
27. Disclosure of even true private facts has
the tendency to disturb a person's tranquility. It may generate many complexes in him and may even lead to psychological problems. He may, thereafter, have a disturbed life all through. In the face of these potentialities, and as already held by this Court in its various decisions referred to above, the Right of Privacy is an essential component of right to life envisaged by Article 21. The right, however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others.
28. Having regard to the fact that the appellant was found to be HIV(+), its disclosure would W.P.(C) No. 22112 of 2021 -30-
not be violative of either the rule of confidentiality or the appellant's Right of Privacy as Ms. 'Y' with whom the appellant was likely to be married was saved in time by such disclosure, or else, she too would have been infected with the dreadful disease if marriage had taken place and consummated. xx xxx xxxxxx
43. Ms. 'Y', with whom the marriage of the
appellant was settled, was saved in time by the disclosure of the vital information that the appellant was HIV(+). The disease which is communicable would have been positively communicated to her immediately on the consummation of marriage. As a human being, Ms. 'Y' must also enjoy, as she, obviously, is entitled to, all the Human Rights available to any other human being. This is apart from, and, in addition to, the Fundamental Rights available to her under Article 21, which, as we have seen, guarantees "Right to Life" to every citizen of this country. This right would positively include the right to be told that a person, with whom she was proposed to be married, was the victim of a deadly disease, which was sexually communicable. Since "Right to Life" includes right to lead a healthy life so as to enjoy all faculties of the human body in their prime condition, the respondents, by their disclosure that the appellant was HIV(+), cannot be said to have, in any way, either violated the rule of confidentiality or the right of privacy. Moreover, where there is a clash of two Fundamental Rights, as in the instant case, namely, the appellant's right to privacy as part of right to life and Ms. 'Y's right to lead a healthy life which is her Fundamental Right under Article 21, the RIGHT which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral considerations cannot be kept at bay and the Judges are not expected to sit as mute structures of clay, in the Hail, known as Court Room, but have to be sensitive, "in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the
W.P.(C) No. 22112 of 2021 -31- day." (See Legal Duties: Allen)”
56. In Dr. Raghavan Menon v. Health Inspector,
Koduvayur, reported in 1972 KLT 834, a learned single Judge of this Court had an occasion to consider the question of vaccination in rural areas and held that it is sufficient to say that a system of vaccination even if it infringes the conscientious objection of the petitioner, the State has authority to introduce legislation, in the interest of the people for the preservation of public health which is a part the scheme of social welfare.
57. In Mazdoor Kisan Shakti Sangathan v. Union of
India and Another reported in AIR 2018 SC 3476, while considering the question as to how the conflict between two fundamental rights are to be resolved, the Hon'ble Supreme Court, at paragraphs 54 & 58, held as under: “54. The right to protest is, thus, recognised as a fundamental right under the Constitution. This right is crucial in a democracy which rests on participation of an informed citizenry in governance. This right is also crucial since it strengthens representative democracy by enabling direct participation in public affairs where individuals and groups are able to express dissent and grievances, expose the flaws in governance and demand accountability from State authorities as well a powerful entities. This right is crucial in a vibrant democracy like India but more so in the Indian context to aid in the assertion of the rights of the marginalised and poorly represented minorities.
xx xx xxxxxxx
58. In the aforesaid context, it would be pertinent to point out that there may be situations where conflict may arise between two fundamental W.P.(C) No. 22112 of 2021 -32-
rights. Situations can conflict on inter fundamental rights, intra fundamental rights and, in certain peculiar circumstances, in respect of some person one fundamental right enjoyed by him may come in conflict with the other fundamental right guaranteed to him. In all such situations, the Court has to examine as to where lies the larger public interest while balancing the two conflicting rights. It is the paramount collective interest which would ultimately prevail.”
58. In Ritesh Sinha v. State of Uttar Pradesh and
Another, reported in (2019) 8 SCC 1, while considering the issue as to whether a Magistrate can authorise investigating agency to record voice sample of the accused, the Hon'ble Supreme Court, at paragraph (24), held thus: “24. Would a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy Under Article 20(3) of the Constitution, is the next question. The issue is interesting and debatable but not having been argued before us it will suffice to note that in view of the opinion rendered by this Court in Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors. [(2016) 7 SCC 353], Gobind v. State of Madhya Pradesh and Anr. [(1975) 2 SCC 148] and the Nine Judge's Bench of this Court in K.S. Puttaswamy and Anr. v. Union of India and Ors. [(2017) 10 SCC 1] the fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest. We refrain from any further discussion and consider it appropriate not to record any further observation on an issue not specifically raised before us.”
59. The State Government is imposed with a duty under the Directive Principles of State Policy; Article 38 of the Constitution of India, which clearly specifies that the State shall W.P.(C) No. 22112 of 2021 -33-
strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic, and political, shall inform all the institutions of the national life. Likewise, under Article 47, the State is endowed with the duty for raising the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. Similarly, Article 51A under Part IVA, inserted into the Constitution of India, as per Forty-second Amendment Act, 1976, which deals with the fundamental duties, makes it clear that it shall be the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions, and also to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement.
60. Even though the petitioners have also sought for a
direction to the State Government, to enhance the vaccination activities, we do not think any such directions can be issued since the supply of vaccine is regulated and controlled by the Government of India, in order to have an equitable distribution among various States/UTs. Moreover, the Hon'ble Apex Court had occasion to consider the said issue in a Suo Motu Writ Petition (C) No.3 of 2021, [In Re: Distribution of Essential Supplies and Services during Pandemic] reported in AIR 2021 SC 2356, and held that the Central Government is free to choose any available course of action that it deems fit to tackle the issue of requirements of adequate vaccine. Therefore, if we interfere with the policy adopted by the Central Government, it would
W.P.(C) No. 22112 of 2021 -34-
imbalance the process and it is for the State Government to address its requirements to the Government of India for the supply of vaccine, taking into account the emergent situation. This is also because, even according to the petitioners, a systematic vaccination procedure is followed by the State and at the time of argument, the learned Special Government Pleader has handed over a copy of the COVID-19 Daily Vaccination Bulletin dated 29.08.2021, which is extracted above. Perusal of the said bulletin shows that vaccination is administered in all the districts as per the mandated procedure prescribed by the State Government and it is progressing in a systematic, dedicated and disciplined manner.
61. On an analysis of the discussions made above, it
would be clear that interest of the State Government, in issuing the impugned Government orders, is only a collective interest, to protect the health, welfare, and interest of the citizens at large and, therefore, the action of the State in including the alleged objectionable clauses contained in the impugned Government orders, can never be said to be arbitrary, illegal, irrational or unreasonable, and violative of the fundamental rights enjoyed by the petitioners or the citizens of the State under the Constitution of India.
62. Upshot of the above discussion is that the petitioners
have not made out a case for interference with the action of the State Government in imposing the restrictive clauses contained in the Government orders dated 4.8.2021 and 10.08.2021. W.P.(C) No. 22112 of 2021 -35- In the result, instant writ petitions are dismissed.”
14. Though Mr. John Mani V., learned counsel for the petitioner,
made submissions on the basis of a decision of the High Court of Manipur at Imphal in Public Interest Litigation No. 34 of 2021 dated 13.07.2021 [Obsert Khaling v. State of Manipur and 2 Others]; decision of the High Court of Meghalaya at Shillong, in Public Interest Litigation No. 6 of 2021 dated 23.06.2021 [Registrar General, High Court of Meghalaya v. State of Meghalaya] and of the Gauhati High Court in WP(C)/37/2020 dated 02.07.2021 [In Re Dinthar Incident v. State of Mizoram and 11 Others], and urged this Court to consider the abovesaid judgments, with reference to the reliefs sought for, it is trite law that a Division Bench of this Court is bound to follow the earlier decision on similar facts and circumstances, and that it would be binding on them.
15. Decisions rendered by Coordinate Benches of the other High Courts do have a persuasive value, but then, it is not binding on this Court.
16. On the aspect of precedents and binding effect of the judgments rendered by Coordinate Benches or Larger Benches of the W.P.(C) No. 22112 of 2021 -36- same High Court, we deem it fit to consider few decisions:
(i) In S.I. Rooplal and Ors. v. Lt. Governor Through Chief Secretary, Delhi and Ors. [(2000) 1 SCC 644], the Hon'ble Supreme Court held as under: “12. At the outset, we must express our serious dissatisfaction in regard to the manner in which a coordinate
Bench of the tribunal has overruled, in effect, an earlier judgment
of another coordinate Bench of the same tribunal. This is opposed to all principles of judicial discipline. If at all, the subsequent Bench of the tribunal was of the opinion that the earlier view taken by the coordinate Bench of the same tribunal was incorrect, it ought to have referred the matter to a larger Bench so that the difference of opinion between the two coordinate Benches on the same point could have been avoided. It is not as if the latter Bench was unaware of the judgment of the earlier Bench but knowingly it proceeded to disagree with the said judgment against all known rules of precedents. Precedents which enunciate rules of law from the foundation of administration of justice under our system. This is a fundamental principle which every Presiding Officer of a Judicial Forum ought to know, for consistency in interpretation of law alone can lead to public confidence in our judicial system. This Court has laid down time and again precedent law must be followed by all concerned; deviation from the same should be only on a procedure known to law. A subordinate court is bounded by the enunciation of law made by the superior courts. A coordinate
W.P.(C) No. 22112 of 2021 -37- Bench of a Court cannot pronounce judgment contrary to declaration of law made by another Bench. It can only refer it to a larger Bench if it disagrees with the earlier pronouncement.
13. We are indeed sorry to note the attitude of the tribunal
in this case which, after noticing the earlier judgment of a coordinate Bench and after noticing the judgment of this Court, has still thought it fit to proceed to take a view totally contrary to the view taken in the earlier judgment thereby creating a judicial uncertainty in regard to the declaration of law involved in this case. Because of this approach of the latter Bench of the tribunal in this case, a lot of valuable time of the Court is wasted and parties to this case have been put to considerable hardship.
14. In our opinion, the above error on the part of the
tribunal in the normal course should have made us remand this case to the tribunal to be decided by a larger Bench of the tribunal to decide the issue involved in this case, but then taking into consideration the time already consumed by this case and cost and inconvenience suffered by the parties concerned because of the above referred indiscretion of the tribunal we think in the interest of justice we should put to rest the controversies involved in these appeals.”
(ii) In Lily Thomas v. Union of India reported in (2000) 6
SCC 244, the Hon'ble Supreme Court, reiterated the principle that rulings of Larger Bench should be followed and those of Coordinate Bench of equal strength not to be different from and most be followed. W.P.(C) No. 22112 of 2021 -38-
(iii) In Rajasthan Public Service Commission and Ors. v. Harish Kumar Purohit and Ors. [(2003) 5 SCC 480], the Hon'ble Apex Court held as under:
“13. Before parting with the case we would like to point out one disturbing feature which has been brought to our notice. On 13.12.2001 a Division Bench dismissed an application containing identical prayers. Even before the ink was dry on the judgment, by the impugned judgment, another division Bench took a diametrically opposite view. It is not that the earlier decision was not brought to the notice of the subsequent Division Bench hearing the subsequent applications. In fact, a reference has been made by the submissions made by the Commission where this decision was highlighted. Unfortunately, the Division Bench hearing the subsequent applications did not even refer to the conclusions arrived at by the earlier Division Bench. The earlier decision of the Division Bench is binding on a Bench of coordinate strength. If the Bench hearing matters subsequently entertains any doubt about the correctness of the earlier decision, the only course open to it is to refer the matter to a larger Bench.
14. The position was highlighted by this Court in a three- judge Bench decision in State of Tripura v. Tripura Bar Association and Ors. (AIR 1999 SC 1494), in the following words: "We are of the view that the Division Bench of the High Court which has delivered the impugned
judgment being a coordinate Bench could not have
W.P.(C) No. 22112 of 2021 -39-
taken a view different from that taken by the earlier Bench of the High Court in the case of Durgadas Purkayastha v. Hon'ble Gauhati High Court 1988 (1) Gau LR 6. If the latter Bench wanted to take a view different than that taken by the earlier Bench, the proper course for them would have been to refer the matter to a larger Bench. We have perused the reasons given by the learned Judges for not referring the matter to a larger Bench. We are not satisfied that the said reasons justified their deciding the matter and not referring it to the larger Bench. In the circumstances, we are unable to uphold the impugned judgment of the High Court insofar as it relates to the matter of inter se seniority of the Judicial Officers impleaded as respondents in the writ petition. The impugned
judgment of the High Court insofar as it relates to the
matter of seniority of the respondent-Judicial Officers is set aside. The appeals are disposed of accordingly. No costs.”
15. In the instant case, the position is still worse. The
latter Bench did not even indicate as to why it was not following the earlier Bench judgment though brought to its notice. Judicial propriety and decorum warranted such a course indicated above to be adopted.”
(iv) In fact, the Hon'ble Supreme Court has criticized the
decisions of Coordinate Benches, which have not followed the earlier judgments by another Coordinate Bench. In Official Liquidator v. Dayanand and others [(2008) 10 SCC 1], at paragraph Nos.90 and 91, the Hon'ble Apex Court held as under: W.P.(C) No. 22112 of 2021 -40-
"90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.
We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal
issues and protect and preserve rights of the individuals and
W.P.(C) No. 22112 of 2021 -41-
society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.”
(v) Judicial discipline envisages that a Coordinate Bench follow
the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a larger Bench. [See Pradip Chandra Parija v. Pramod Chandra Patnaik, reported in (2003) 7 SCC 1; followed in Union of India v. Hansoli Devi, reported in
(2002) 7 SCC 273]. But, no decision can be arrived at contrary to or
inconsistent with the law laid down by the Coordinate Bench. Kalyani Stores v. State of Orissa and Others reported in AIR 1966 SC 1686 and Krishna Kumar Narula v. State of Jammu and Kashmir and Others reported in AIR 1967 SC 1368, both have been rendered by the Constitution Benches. The said decisions, therefore, cannot be thrown out for any purpose whatsoever; more so when both of them if applied collectively lead to a contrary decision proposed by the majority. W.P.(C) No. 22112 of 2021 -42-
17. Thus going by the judgment in W.P.(C) No. 16614 of 2021
dated 17.09.2021, we are of the view that similar issues raised in the present W.P.(C) No. 22112 of 2021, have been extensively considered and answered in the negative.
18. In the light of the legal pronouncements on law of precedent,
decision in W.P.(C) No. 16614 of 2021 dated 17.09.2021 is binding on us. Giving due consideration to the reliefs, pleadings, submissions and the material on record, we are of the view that instant writ petition has to fail, following the decision in W.P.(C) No. 16614 of 2021 dated 17.09.2021. Accordingly, writ petition is dismissed. All pending Interlocutory Applications shall stand closed. Sd/- S. MANIKUMAR CHIEF JUSTICE Sd/- SHAJI P. CHALY JUDGE Eb ///TRUE COPY/// P. A. TO JUDGE W.P.(C) No. 22112 of 2021 -43- APPENDIX OF WP(C) 22112/2021 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF G.O(RT) NO.669/2021 /DMD ISSUED BY THE 3RD RESPONDENT DATED 02.10.2021 EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 13.07.2021 OF HON'BLE HIGH COURT OF MANIPUR IN PIL NO.34 OF 2021 EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 23.06.2021 OF HON'BLE HIGH COURT OF MEGHALAYA IN PILL NO.06/2021 EXHIBIT P4 A TRUE COPY OF THE ORDER OF HIGH COURT OF GAUHATHI IN WPC NO.37/2021 EXHIBIT P5 A TRUE COPY OF NUREMBERG CODE 1947 EXHIBIT P6 A TRUE COPY OF THE ORDER NO.1374/2021 OF HIGHER EDUCATION DEPARTMENT DATED TRANSLATION. EXHIBIT P7 A TRUE COPY OF EXTRACT OF DAILY
BULLETIN PUBLISHED IN COVID 19 OUTBREAK CONTROL AND PREVENTION STATE CELL HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT OF KERALA FOR 19-10-2021. EXHIBIT P7(A) A TRUE COPY OF EXTRACT OF DAILY BULLETIN PUBLISHED IN COVID 19 OUTBREAK CONTROL AND PREVENTION STATE CELL HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT OF KERALA FOR 18-10-2021. EXHIBIT P7(B) A TRUE COPY OF EXTRACT OF DAILY BULLETIN PUBLISHED IN COVID 19 OUTBREAK CONTROL AND PREVENTION STATE CELL HEALTH FAMILY WELFARE DEPARTMENT, GOVERNMENT OF KERALA FOR 17-10-2021. EXHIBIT P7(C) A TRUE COPY OF EXTRACT OF DAILY BULLETIN PUBLISHED IN COVID 19 OUTBREAK CONTROL AND PREVENTION STATE CELL HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT OF KERALA FOR 16-10-2021. EXHIBIT P7(D) A TRUE COPY OF EXTRACT OF DAILY BULLETIN PUBLISHED IN COVID 19 OUTBREAK CONTROL AND PREVENTION STATE CELL HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT OF KERALA FOR 15-10-2021.