Explain why only vaccinated are allowed in local trains, malls, offices: Bombay High Court to Maharashtra govt

The Bombay High Court on Wednesday asked the Maharashtra government to explain 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 [ Feroze Mithiborwala v. State of Maharashtra & Ors].

. A Bench of Chief Justice Dipankar Datta and Justice MS Karnik was hearing two petitions assailing the circulars issued by the Maharashtra government prohibiting persons who are not fully vaccinated against COVID-19 from travelling by local trains.

As per these circulars, only fully-vaccinated persons are allowed to travel via trains and visit malls and workspaces.

"What about the bread and butter of those who have only taken single vaccination, don't they have to travel for work?" the Bench remarked.

It then recorded in its order that "keeping in mind the broader issue of curtailment of the fundamental rights of non- vaccinated citizens to avail suburban rail services, the rationale therefore needs to be presented before the Court either by the State Government or by the State Disaster Management Authority (SDMA) /the State Executive Committee" .

The Bench proceeded to direct the Chief Secretary of State of Maharashtra ( ex-officio Chairperson of State Executive Committee as well as a member of SDMA) to file an affidavit giving reasons for making classification between vaccinated and non-vaccinated citizens to avail suburban train services.

. Appearing for the petitioners, advocates Nilesh Ojha and Tanveer Nizam submitted that the circulars violated the fundamental rights of the citizens under Articles 14, 19 and 21 of the Constitution of India.

While Ojha was pointing out medical reports to substantiate his claims that vaccination was a threat to life, CJ Datta quipped, "What is the report of the AEFI? A few months back there was apprehension that people will die due to AEFI. After our directions and after much, much obstruction from the Centre, the State and BMC started the door to door vaccination."

He stated that the Bench noted that the AEFI was less than 0.09%. He asked Ojha to submit an AEFI report from an Indian source and more particularly apprise the bench about the numbers from Maharashtra and not to cite foreign articles and reports.

"Foreign countries are now under lockdown. We have crossed the second wave and have no lockdown. So don’t show us European reports. It is them who should compare themselves to India," the CJ added.

He also pointed out that Indian challenges were unique, and hence ought not be compared to a European country.

"We are not so fortunate as to have sparse population. We have a large population and our population in Dharavi is larger than Europe. We have such challenges," the CJ said.

. Senior Advocate Anil Anturkar appearing for State of Maharashtra, argued that neither do the petitioners have locus standi to present writ petitions invoking the writ jurisdiction of the High Court in public interest nor have they highlighted the cause of action.

In any case, he argued, the circulars of the Maharashtra under challenge did not put a complete restriction on the movement of the people, it merely stopped people from being able to purchase season tickets for suburban local trains.

He further urged that the circulars/notifications issued by SDMA and the State Executive Committee are under challenge in both the writ petitions and such authorities and/or Committee being impleaded as respondents in the writ petitions.

On this, the Court granted leave to the petitioners to implead the necessary parties to the petition.

. The Court granted time to the Chief Secretary to file an affidavit by December 21 and posted the case for hearing on December 22, 2021.

. [Read order]

Explain why only vaccinated are allowed in local trains, malls, offices: Bombay High Court to Maharashtra govt

Neha Joshi

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