Right to refuse medical treatment does not preclude Executive from taking measures for restoring normalcy in times of Pandemic: Kerala High Court

The Kerala High Court has held that right of individuals does not affect authority of the executive to take measures to restore normalcy to life in times of pandemic.

A bench of Justice P.B. Suresh was hearing a petitions filed by students and teachers against a government order, allowing physical classes in educational institutions for students and teachers who have taken double dose of Covid-19 vaccine.

The Court dismissed the writ petition stating that that "larger public interest of the community should give way to individual apprehension of violation of human rights and right to life guaranteed under Article 21".

The Court further observed that the right to life guaranteed under Article 21 of the Constitution includes the right to refuse medical treatment, however, the said right does not affect the authority of the executive to take measures to restore normalcy to life in times of pandemic. Hence, such measures cannot be challenged as discriminatory by the unvaccinated.

The petitioner’s have contended that the vaccine is not compulsory and the right to life guaranteed under Article 21 of the Constitution of India, especially the right to privacy available to the petitioners also gives them the freedom to abstain from taking the vaccine. The petitioners cited n K.S. Puttaswamy v. Union of to India strengthen their argument.

The Government argued that no fundamental right is absolute and in the interest of general public, reasonable restrictions can be imposed by the Government. That  the measures taken in terms of the impugned order and circulars are only those taken in public interest to suppress the spread of Covid-19. It was also argued that the rights of individuals are always subservient to public interest and the directions contained in the impugned order and circulars being directions issued in public interest, they cannot be impugned on the ground of violation of fundamental rights of the individuals.

ORDER

The Court considered the Division Bench’s earlier ordered, wherein pleas challenging the decisions of the competent authorities permitting entry of the vaccinated in public places were dismissed. The Court had observed that:

“the petitioners are self- centric and are concerned only with their fundamental rights guaranteed under Part III of the Constitution of India. The State Government, as a trustee of the public affairs, is duty bound to consider and view the issues due to the pandemic, in a broader and larger canvas, and should be concerned more with the interest of the public, rather than individual's interest.”

Justice Suresh noted that in the light of the above decision of the Division Bench, the Court is precluded from taking a contrary view in the matter.

The Court further referred to the Supreme Court decision in In Re: Distribution of Essential Supplies and Services During Pandemic, in light of the executive to take appropriate measures during public health emergencies. The Apex Court had observed that:

"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. 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.” 

Case Title: Sanil Narayanan & Ors v. State of Kerala & Ors.