Do we have powers of judicial review in health matters? Bombay High Court in pleas against restrictions on unvaccinated persons

While hearing pleas challenging the Maharashtra government's policy to not permit unvaccinated persons to travel by local trains and avail of other services, the Bombay High Court on Monday pondered over the extent of judicial review powers available to courts in matters pertaining to the health of citizens..The petitions have challenged the circulars on the grounds that they were arbitrary, discriminatory, and against the guidelines of the Central government and directions of the Supreme Court..On the directions of the Bench of Chief Justice Dipankar Datta and Justice MS Karnik, the State government had filed its reply explaining the rationale behind discriminating between persons who are vaccinated against COVID-19 and those who are not, when it comes to access to public spaces and public transport.Perusing the reply as well as the rejoinder of the petitioner to the State's reply, the Bench asked,"If a decision is taken by the government, State or Centre, on the issue of health, to what extent can High Court intervene and strike those decisions down?"The Bench asked counsel for the petitioner to address this in the next hearing. .During the hearing today, advocate Nilesh Ojha argued that the State government has no authority to pass an order under the Disaster Management Act which is against the order of the Central government.If any order or regulation is to be passed by the State authority, then it has to be placed before the legislature within 30 days, he added.The affidavits of the Central government filed before the Supreme Court and the High Court at Goa have made their stand clear that there ought to be no discrimination based on the basis of vaccination status. Hence any counter-contention by the State is null and void, Ojha said..After perusing the affidavit filed by the Chief Secretary of the State, the Bench noted that the State as parens patriae had the responsibility to look after the entire population irrespective of their vaccination status as per Article 21 of the Constitution. However, CJ Datta added that vaccination was a sort of weapon which was to be utilised in the fight against COVID-19, and reduced the chances of hospitalisation. "No one says that if vaccinated he will be immune from COVID infection in future. These are just steps in the fight against COVID. Even after wearing masks, sanitization and vaccination, people have contracted COVID, even the most protected persons. Vaccination may act as a shield against any possible future infection," he commented..Referring to the affidavit, CJ Datta stated that with a figure of approximately 7.9 crore people having taken the first dose of the COVID-19 vaccination, more than 75 per cent of the total population of the State was under the impression that vaccination could work for them. "Maybe they will not get 100% protection. But even medicines cannot protect you 100%. If you are diabetic and you take medicine, then you are just protecting yourself from something severe happening. So this (vaccination) is a step which like other medicines is intended to protect you from the virus, act as a shield," CJ Datta explained..The Court told Ojha to bring forth authorities which show the blatant arbitrariness of the circulars issued by the State."The State has taken a policy decision which they are entitled to take for the general public and as parens patriae they have a duty. There could be a wiser policy, sounder policy. But would that be a ground to say that the state’s policy should be interfered with?" The Bench asked Ojha to show the Bench that the policy decision does not show reasonable classification, that no reasonable person would act on the order of the State, and to sum up "shock the conscience of the Court by showing the arbitrariness of the order of the State". "You have to show authorities, we cannot go by feeling. One may feel it (vaccination) is necessary, one may not feel it necessary. But you show authorities based on which these decisions can be challenged," the Bench said before adjourning the hearing to next week..[Read a live account of the hearing here]