Public transport restrictions on unvaccinated persons reasonable classification: Maharashtra to Bombay High Court

The Chief Secretary of the Maharashtra government and Director of State Health Department filed a response before the Bombay High Court 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. [Feroze Mithiborwala v. State of Maharashtra & Ors]..Chief Secretary Debashish Chakrabarty stated in his reply that allowing non-vaccinated persons to mix with vaccinated will endanger the lives of everyone."Allowing unvaccinated persons to mix with the people, by using the Public transport will only endanger and will invite the explosive transmission of the corona virus and its subsequent variants and the Government of Maharashtra as parens patriae cannot afford to take that risk," the reply said..Chakrabarty informed the Court that fully-vaccinated persons, even if he or she contracts COVID infections, have reduced chances of hospitalisation as well as requirement of oxygen.He added that though the State government has worked tirelessly to manage the situation effectively, it could not allow the demand for basic resources to rise beyond a level where it cannot be managed."As much as the supply position is improved, the demand side has to be contained too and demand side cannot be contained without getting citizens fully vaccinated. Even if a citizen is ready to pay for these resources these scare resources have to be managed by State as its fundamental duty," the reply underscored..The reply was filed in the 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.The Bench had, in an earlier hearing, directed the Chief Secretary of Maharashtra (ex-officio Chairperson of State Executive Committee as well as a member of SDMA) to file an affidavit giving reasons for making the classification between vaccinated and non-vaccinated citizens to avail suburban train services. .The reply stated that the notification which was challenged and the directions which were sought did not survive as the government had issued a subsequent notification on November 27, 2021.In light of the new notification, the earlier notification did not survive and since the field is now completely occupied by the subsequent notification, it was submitted..The reply also pointed out that there was a likelihood of a third wave and of a new variant of the virus known as ‘omicron’. Hence, the State could not afford to take any risk and would like to err on the safer side when it comes to public health.In these circumstances, a conscious decision was taken to insist that those who want to travel by public transport must have two doses of the vaccine..Regarding the contention of the petitioner that the circulars violated fundamental rights, it was stated that no citizen can proclaim his or her fundamental right “to be reckless to bring pressure on the resources like oxygen and hospital that must be considered as scarce public resources”..The State clarified that the restriction was not limited to local trains but equally applied to regular railway services, buses and all other kinds of public transport services."If persons have not taken the two doses or if they are not covered by definition of expression 'vaccinated persons then they cannot be allowed to make the use of any 'public transport service',” the reply highlighted..It was contended that the classification was a reasonable one within the scope of Article 14 with the object to ensure protection of health of citizens.On allegation of violation of free movement Article 19, the reply clarified that reasonable restrictions could be imposed in the interest of general public.Regarding right to choice under Article 21 is concerned, the reply said that although a person has a choice to take the vaccine or not, the government would be entitled to impose a restrictions on them using public transport..Sadhana Tayade, Director of Health Department, Maharashtra government also filed an affidavit which stated that “not allowing the non-vaccinated people to use local Trains or other public places was only to secure the right to live of the other vaccinated people."