K.P. Rajesh & Others v. Union of India & State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` # **`FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943 WP(C) NO. 18786 OF 2021`** ## **`PETITIONERS:`** ``` 1K.P.RAJESH DEEPAM, ONAPPARAMBU ROAD, CHIRAKKAL P.O, KANNUR DISTRICT, PIN-670 011. 2BINNU C.E., MYTHRI, VALIYA PARAMBATH, (N) OLESWARAM L.P. SCHOOL, P.O.KAVUMBHAGAM, THALASSERY, PIN-670 649. 3SHAJU.T.P. THAZHEPURAYIL, PUZHATHI, P.O.CHIRAKKAL, KANNUR, PIN-670011. 4P.V.ANANDARAJ. KRISHNA NIVAS, CHEMMARASERIPARA, AZHIKODE, KANNUR, PIN-670 009. 5SAJITH T.K. NEELAMBARI, KANNADIPARAMBA, KANNUR DISTRICT, PIN-670 604. 6AJESH A GHOSH.M. MATTAKKAL HOUSE, P.O.EDAVANAKKAD, ERNAKULAM DISTRICT, PIN-682 502. ``` ``` BY ADV A.G.VISWAMBHARAN ``` ## **`RESPONDENTS:`** ``` 1THE UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF HEALTH & FAMILY WELFARE, NEAR UDHYOG BHAWAN METRO STATION, MAULANA AZAD ROAD, NEW DELHI, PIN-110 011. 2STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. ``` **2** ## **W.P.(C)No.18786 of 2021-S** - `3 TH CHIEF SECRETARY TO GOVERNMENT DISASTER MANAGEMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPRUAM, PIN-695 001.` - `4 THE SECRETARY TO THE GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.` - `5 THE SECRETARY TO GOVERNMENT AYUSH DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPRUAM, PIN-695 001.` ``` BY ADV SHRI.P.VIJAYAKUMAR, ASG OF INDIA SRI.JAGADEESH LAKSHMAN, CGC FOR R1 SRI. K.P.HARISH, SR. GP FOR R2 TO R5 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C)No.18786 of 2021-S** **3** ## **JUDGMENT** ## Dated this the 24[th] day of September, 2021 ## **S.Manikumar, C.J.** Instant public interest litigation is filed seeking for the following reliefs: A) Issue a writ of mandamus, direction or other appropriate writ or order to the 3[rd] respondent to cancel or modify Para.4 of Ext.P1 to the extent that it will not restrain the freedom of movement and discrimination among people as vaccinated and not vaccinated. B) Issue a writ of mandamus, direction or other appropriate writ or order to the 1[st] respondent to take necessary serious actions for the clinical study, research and necessary other steps to assess the Adverse Events Following Immunization (AEFI) cases following COVID-19 vaccination. - C) Issue a writ of mandamus, direction or other apA) Issue a writ of mandamus, direction or other - appropriate writ or order to the 3[rd] respondent to cancel or modify Para.4 of Ext.P1 to the extent that it will not restrain the freedom of movement and discrimination among people as vaccinated and not vaccinated. - B) Isspropriate writ or order to the 4[th] respondent, to consider and issue necessary orders to award compensation/financial assistance to the persons seriously affected by COVID-19, after vaccination. - D) Issue a writ of mandamus, direction or other appropriate **4** ## **W.P.(C)No.18786 of 2021-S** writ or order to the 4[th] respondent to expedite steps for the formation of the authority named "Trance Discipline Hub" for the research and development of Ayurveda in the field of treatment of virus diseases like COVID-19 under "AYUSH" Department, as detailed in Ext.P10. 2. Short facts leading to the filing of the writ petition are as follows: Petitioners are social workers and actively involved in the public health and connected matters of common people in Kerala. World Wide human community benumbed before the unexpected pandemic of COVID-19. Nations worldwide are implementing various remedial measures to save the precious lives of their citizens. Social distancing, wearing masks, using sanitizer, washing hands and taking vaccinations are the most accepted remedial measures suggested and implemented by the public health authorities worldwide, under the leadership of World Health Organisation (WHO). In India, both the Central and State Governments are issuing guidelines in the form of Standard Operating Procedure (SOP). Since there is no pre-approved plan or precedence in fighting a pandemic like COVID-19, the remedial measures taken by the Governments are hectic and hence, need to be recalled or modified. Para No.4 in the Government Order (Ord.)No.564/ 2021/D.M.D. dated 4.8.2021 issued by Government of Kerala contained violations against the fundamental rights of people guaranteed under Articles 14 (right to equality before law), 15 (right against discrimination), 19(1) (d) right **W.P.(C)No.18786 of 2021-S** **5** of freedom to movement) and 21(right to personal liberty). It is pertinent to note that Article 21 of the Constitution of India will not be curtailed even in emergency period. In the light of the above, Para- 4 of the GO needs to be deleted or modified. It is a fact that even vaccinated persons can infect corona virus and can spread corona virus to others as well. In such a situation, discrimination of people, whether vaccinated or not, is against the principles of natural justice. The studies of COVID-19 disease, its side effects, and other related matters, reveal that a vaccinated person can be infected by COVID-19 and severe casualties to human life are also reported. No compensation/financial assistance is provided to the persons who are severely affected by COVID19 after taking vaccinations. Adverse Events following Immunisation (AEFI) studies reveal that serious aftereffects are reported globally, in the case of vaccinated persons. Since the vaccination process is in progress, reported cases of Adverse Events following Immunisation are also increasing day-by-day. Considering the public fear and anxiety against COVID-19, Governments of Nations are promoting vaccinations without seriously considering the Adverse Events Following Immunisation (AEFI). Serious research, proper evaluation and assessment is very important as far as AEFI is concerned. It is a well admitted fact that there is no medicine towards COVID-19 in Allopathic system of medicine and the only remedy available is vaccination. Various studies revealed that there are medicines under the alternative systems. The clinical trials and studies conducted under the guidance and **W.P.(C)No.18786 of 2021-S** **6** supervision of State Ayurveda Covid-19 Response Cell under AYUSH Department reveals that treatment under Ayurveda are effective and less severe compared to vaccination. Even vaccinated persons can be infected by COVID-19 and casualties to the human life are also reported, it could not be said that vaccination is the final word in the treatment of COVID-19. Hence research and study in the systems of alternative medicines is the urgent need of the hour. The suggestion of the Health Minister in the Kerala Legislative Assembly to form a "Trance Discipline Hub" is a matter to be considered urgently. 3. Heard Mr. A. G. Viswambharan, learned counsel for the petitioners, Mr. Jagadeesh Lakshman, learned Central Government Counsel, Mr. K. P. Harish, learned Senior Government Pleader, perused the pleading and material on record. 4. Translated version of Exhibit-P1 Government Order dated 04.08.2021 reads thus: “Government of Kerala ## Abstract Distress Management Department - Covid-19 remedial measures – relaxations and restrictions to be imposed from August 5, 2021 - orders issued. -------------------------------------------------------------------------------------------- Distress Management (A) Department G.O.(Ordy)No.564/2021/DMD Dated, Thiruvananthapuram, 04/08/2021 -------------------------------------------------------------------------------------------- Read: 1. G.O(ordy) No.404/2021 D.M.D dated 06/05/2021. 2. G.O(ordy) No.467/2021 D.M.D dated 16/05/2021. 3. G.O(ordy) No.479/2021 D.M.D dated 22/06/2021. 4. G.O(ordy) No.487/2021 D.M.D dated 29/06/2021. **W.P.(C)No.18786 of 2021-S** **7** 5. G.O(ordy) No.500/2021 D.M.D dated 06/07/2021. 6. G.O(ordy) No.524/2021 D.M.D dated 10/07/2021. 7. G.O(ordy) No.532/2021 D.M.D dated 17/07/2021. 8. G.O(ordy) No.534/2021 D.M.D dated 20/07/2021. 9. G.O(ordy) No.545/2021 D.M.D dated 24/07/2021. ## **ORDER** Over the last few months, the State has taken a number of systematic remedial measures aiming to control Covid-19. On 30/07/2021, the Honourable Chief Minister directed to formulate preventive techniques against Covid-19 focusing on general public health and public livelihood. Following this the state health expert committee held a meeting on 01/08/2021. The Chief Secretary on 31/07/2021 and 02/08/2021 held meetings with the Secretaries of Government, Enforcement Agencies and Chairman of the State Health Expert Committee about the preventive techniques of covid-19. The team sent by the Ministry of Family & Welfare, Central Government, met the Chief Secretary on 02/08/2021 and put forward a suggestion to control the micro containment zones in the state. The Government have considered in detail, the expert opinions and the difficulties faced by the general public to find out their livelihood due to the lockdown. Accordingly the necessity of policies to revise to enter into the micro containment area and the entry of the General public to the lockdown area has been identified. Accordingly, as the chairman of the state Executive Committee of Distress Management Authority (DMA) and empowered by section 20(3) of the Distress Management Act, I hereby order to implement the guidelines in the annexure appended. It is also ordered that the guidelines issued under reference 1 to 11 will be discarded and the guidelines in the Annexure here shall be followed hereafter. **W.P.(C)No.18786 of 2021-S** **8** (By order of the Governor) Dr. V. P. Joy Chief Secretary.” 5. The prime relief sought for by the petitioners is for a direction to cancel or modify paragraph No.4 of annexure to Exhibit-P1 Government order dated 04.08.2021 bearing No.564/2021/DMD, which reads thus: “4. Entry to the shops, markets, banks, public/private sector offices, financial institutions, industrial establishments, factories, open tourist places and other establishments, is allowed only to the persons who had taken the first dose of vaccine before two weeks or who possess RTPCR negative certificate of 72 hours before, or those who have affected Covid-19 disease and holding certificate of recovery (Labours/visitors)” 6. The said issue was considered by us in the judgment dated 17.09.2021 in W.P.(C) Nos.16614 and 17274 of 2021, wherein we held that the regulations made by the Government, to tackle the situations on account of COVID-19 pandemic, cannot be interfered with and if any interference is made, that would make the situation complex and more vulnerable. In that view of the matter, we are of the clear opinion that the petitioners are not entitled to get the relief (A) sought for. 7. We do not agree with the contention of the petitioners that there is no pre-approved plan, in fighting COVID-19 pandemic. Neither the petitioners nor the Court, is not an expert in such matters. Contention of the petitioners that the remedial measures taken by the Governments are to be recalled or modified., cannot be accepted. **9** ## **W.P.(C)No.18786 of 2021-S** 8. True that some vaccinated persons have reported COVID-19 positive. Judicial notice can be taken that as per the study report, risk of loosing life is comparatively less than those, who have not been vaccinated. 9. The rest of the reliefs sought for by the petitioners is as regards accelerating the steps for conducting clinical study, research, etc. We are also of the view that Union, as well as the State Governments, under the provisions of the Disaster Management Act, 2005 and Epidemics Act, 2021 are making their best efforts to organise activities, tide over and combat the emergent situation, due to COVID19 pandemic. 10. Governments are taking decisions and passing orders, taking into account the expert advice given to them by the Health Department. It is for the Government to decide as to how to go about, taking into account the situation prevailing in the community from time-to-time. It is not for the Courts, exercising the power under Article 226 of the Constitution, to advice, direct, and guide the State Government, to act in a particular manner. 11. It is well settled that a writ court considering the issues before it, needs to only analyse as to whether, there was any arbitrary and illegal action on the part of the Government, in exercising the powers conferred on it under the Constitution of India and the laws **W.P.(C)No.18786 of 2021-S** **10** thereto. We find that the petitioners have not established before this Court that the State Government has made any error in exercising its powers conferred under the Constitution of India and the laws mandating interference, exercising the power of discretion conferred under Article 226 of the Constitution of India. 12. Insofar as the relief sought for by the petitioners that the State Government shall expedite the steps for the formation of the authority named “Trance Discipline Hub” for research and development of Ayurveda, in the field of treatment of virus diseases like COVID-19 under AYUSH Department, as detailed in Exhibit P10, apparently produced, downloaded from the website, and issued by the Center for Disease Control and Prevention, it is for the State Government to decide as to whether, it should conduct any study and implement such advice. As we have pointed out earlier, this Court may not be justified and right in advising the Government, to do a particular thing in a particular manner, unless and until the petitioners are able to establish before this Court that such a direction is required by virtue of any provision of law. 13. However, we are reminded of the decision in **Dr. AKB** ## **Sadbhavana Mission School of Homoeo Pharmacy v. The Secretary, Ministry of Ayush & Others** reported in **(2021) 2 SCC 539** , wherein the Hon'ble Supreme Court had considered the issue of combating COVID- **W.P.(C)No.18786 of 2021-S** **11** 19 pandemic, by applying homoeopathic medical preparations. In the said decision, the Hon'ble Apex Court has also considered that Government of India, Ministry of AYUSH, have issued guidelines, subsequent to 6.3.2020, where homoeopathic approach to COVID-19, has been elaborately dealt with. Therefore, ultimately it is for the State Government, to decide as to whether, it should introduce any protocol, with respect to the guidelines issued by the AYUSH Department. 14. We do not think the petitioners have made out a case for interference, as are sought for. Needless to say, the writ petition fails and accordingly, it is dismissed. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** ## **vpv** **W.P.(C)No.18786 of 2021-S** **12** ## **`APPENDIX OF WP(C) 18786/2021`** ## `PETITIONER EXHIBITS` - `Exhibit P1 COPY OF THE GOVERNMENT ORDER (ORD) NO.564/2021/D.M.D. DATED 04.08.2021.` - `Exhibit P2 COPY OF THE ENGLISH TRANSLATION OF THE EXT.P1.` - `Exhibit P3 COPY OF THE ORDER IN CASE NO. WP(C) 37/2020 DATED 02.07.2021 OF THE HONOURABLE GAUHATI HIGH COURT IN THE MATTER OF STATE OF MIZORAM.` - `Exhibit P4 COPY OF THE ORDER IN CASE NO. PIL 13/2021 DATED 19/07/2021 OF THE HONOURABLE GAUHATI HIGH COURT IN THE MATTER OF STATE OF ARUNANCHAL PRADESH.` - `Exhibit P5 COPY OF THE AEFI RESULT DATED 05.03.2021, 17/03/2021, 04.06.2021. 08/07/2021 AND 12/07/2021.` - `Exhibit P6 COPY OF THE RTI ONLINE REPLY DATED 06.06.2021.` - `Exhibit P7 COPY OF THE RTI ONLINE REPLY DATED 21.06.2021.` - `Exhibit P8 COPY OF THE RTI ONLINE REPLY DATED 15.04.2021.` - `Exhibit P9 COPY OF THE RTI ONLINE REPLY DATED 06.04.2021.` - `Exhibit P10 COPY OF THE REPORT PUBLISHED BY THE CENTERS FOR DISEASE CONTROL AND PREVENTION (CDC) DATED 25/06/2021 REGARDING VACCINE BREAKTHROUGH CASES.` - `Exhibit P11 COPY OF THE FACT SHEET PUBLISHED BY THE SERUM INSTITUTE TO THE RECEPIENTS IN RESPECT OF COVISHIELD VACCINE.` - `Exhibit P12 COPY OF THE FACT SHEET PUBLISHED BY THE SERUM INSTITUTE TO THE RECEPIENTS IN RESPECT OF CO-VACCINE.` - `Exhibit P13 COPY OF THE QUESTIONS AND ANSWERS DELIVERED BY THE HONOURABLE MINISTER, HEALTH AND FAMILY WELFARE IN THE KERALA ASSEMBLY ON 04.08.2021.` - `Exhibit P14 ENGLISH TRANSLATION OF EXHIBIT P-13.` //TRUE COPY// P.A. TO JUDGE