Classification of vaccinated and unvaccinated persons for issuance of work permits prima facie violates fundamental rights: Gauhati High Court

The Itanagar Bench of the Gauhati High Court on Monday stayed an order issued by the Arunachal Pradesh government differentiating between persons who have received the COVID-19 vaccine and those who haven't, allowing temporary permits for developmental work only to the former (Madan Mili v. Union of India)..The Single Judge Bench of Justice Nani Tagia prima facie found that this order was violative of fundamental rights under Articles 14, 19 (1) (d) and 21, noting that the classification was not based on intelligible differentia..The order arose out of a Public Interest Litigation challenging Clause 11 of an order by the Government of Arunachal Pradesh directing that permits for developmental work in the State may only be issued to vaccinated persons. The clause stated,“11. Tourist ILPs shall remain suspended during the period of this order, however for developmental works in both public and private sector, temporary permits may be issued provided such persons are vaccinated for COVID 19.”.The petitioners contended that as per the Union Ministry of Health and Family Welfare, the COVID-19 vaccine is not mandatory but voluntary. Further, the petitioners relied on a question answered by the Health Minister in the Lok Sabha stating that there is no provision of compensation for recipients of Covid-19 Vaccination against any kind of side effects or medical complication that may arise due to inoculation and the Covid-19 Vaccination is entirely voluntary for the beneficiaries..In light of these submissions, the petitioners stated that the government order has interfered with the rights of the citizens under Article 19(1)(d) to move freely throughout the territory of India, and therefore, the same should be struck down..On the other hand, the Additional Advocate General appearing for the State submitted that the restrictions were put in place in order to control the rising cases of COVID-19 in the State and were thus reasonable restrictions..The Court observed that the right under Article 19 (1)(d) of the Constitution is not absolute and is subject to reasonable restrictions. However, such restrictions must be reasonable and in conformance with Article 14 of the Constitution of India. The order stated,“Article 14 of the Constitution of India forbids class legislation, but does not forbid classification or differentiation which rests upon reasonable grounds of distinction.”.Further, Justice Tagia relied on the judgment In Re Dinthar Incident Aizawl v. State of Mizoram & Ors to note that there is no evidence that vaccinated persons cannot be infected with COVID-19 or cannot be carriers and consequent spreaders of the virus..Considering this observation, the Court found that if the sole purpose of the order issued by the Government of Arunachal Pradesh is to contain the spread of COVID-19, the order appears to be a classification not founded on intelligible differentia nor it is found to have a rational relation/nexus to the object sought to be achieved by such classification, namely, containment and further spread of Covid-19 pandemic..Notice was issued in the matter. In the meanwhile, the Court stayed the government order in question. The matter will be heard next on July 28..[Read Order Here]