[COVID-19] Vaccine mandate for students entering colleges not discriminatory: Kerala High Court

The Kerala High Court recently held that it is not unconstitutional or violative of an individual's fundamental rights for universities and colleges to mandate COVID-19 vaccination for students physically attending classes..Justice PB Suresh Kumar held that although an individual is entitled to the right to refuse medical treatment under the Constitution, such a right does not affect the authority of the executive to take measures to restore normalcy amidst a pandemic. ."No doubt, the right to life guaranteed under Article 21 of the Constitution includes the right to refuse medical treatment as well, but in the light of the decisions in 'Mr.X' and 'G.Sundarrajan', I am of the view that the said right of individuals does not in any manner affect the authority of the executive to take measures like those impugned in the writ petitions to restore normalcy to life in times of pandemic, and merely for the reason that the same gives certain advantages to the vaccinated, such measures cannot be challenged as discriminatory by the unvaccinated," the Court said. .The Court passed the order on two petitions moved by students and teachers from various colleges in the State who claimed to taken an informed decision not to take the vaccine fearing adverse side effects..On September 17, 2021, as COVID-19 restrictions were being relaxed across the State, a Government Order (GO) was issued to open higher education institutions, including professional colleges in the State with effect from October 4 for final year graduate students and postgraduate students, subject to the conditions stipulated by the government..On October 1, the Director of Collegiate Education, issued a Circular directing that only students, teachers and other staff members who have taken two doses of the COVID-19 vaccine or one dose of the vaccine before two weeks or those who have recovered from the COVID-19 infection within the previous 90 days, shall be permitted to enter the educational institutions and their hostels. .The circular afforded exceptions to those who are unable to take the vaccine on account of health issues on the submission of medical certificates attesting to the same..The petitioners contended that the vaccine was not compulsory and that the right to life guaranteed to them under Article 21 of the Constitution of India, especially the right to privacy, also gives them the freedom to abstain from taking the vaccine. .As such, they challenged the GO and the circular as illegal and unconstitutional before the High Court, contending that it would effectively prevent them from continuing their college education unless they take the vaccine. It was argued that the circular under challenge would infringe the fundamental right guaranteed to the petitioners under Article 19(1)(g) of the Constitution..The Government Pleader opposed the plea on the ground that no fundamental right is absolute and that reasonable restrictions can be imposed by the government in the interest of the general public..It was also contended that the rights of individuals must bow down to public interest and that the directions contained in the GO and circular, being directions issued in public interest, cannot be quashed on the ground of violation of fundamental rights of individuals..The State further referred to the decision of a Division Bench of the Kerala High Court, in which the Court had made allied observations while dealing with challenges to government restrictions on entry to public places on the basis of COVID-19 vaccination status..Justice Kumar noted that the Division Bench judgement had been issued after referring to the various judgements of the Supreme Court, including KS Puttaswamy vs Union of India (concerning the right to privacy) and In Re: Distribution of Essential Supplies and Services During Pandemic.The Judge also took note of the Supreme Court judgment in Mr. X v. Hospital Z, to observe that where there is a clash of two fundamental rights, the right which would advance the public morality or public interest must be enforced..Moreover, going by the decision of the top court in G Sundarrajan v. Union of India, Justice Kumar reiterated 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..Therefore, the Court dismissed the petitions and upheld the Government Order and circular that mandated that students be vaccinated to be physically allowed into colleges and hostels..[Read Judgment]