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Judiciary

Supreme Court is hearing plea seeking mandating vaccination for COVID-19

By LawStreet News Network      02 March, 2022 07:08 PM      0 Comments
Supreme Court Covid Vaccination

SupremeCourt is hearing a plea seeking a declaration that mandating vaccination for COVID-19, in any manner whatsoever, even by way of making it a pre-condition for accessing any benefits or services, is a violation of rights of citizens and unconstitutional

Adv Prashant Bhushan: There were phase 3 trials of these vaccines at all. In absence of informed consent the mandate of such vaccines is unconstitutional

Bhushan: increase in hospitalisation is rampant in countries where vaccination has been there. vaccine is a a matter of individual decision and it is I who will be ill due to this virus. whether i take medication or not is my absolute right

Bhushan: I have decided that I will not take this vaccine and it will cause me more harm than good. what i have studied in 2 years is that if you are healthy, the chance you get covid is virtually nil. the long term effects of vaccines is not there

Bhushan: vaccines will in some cases prevent serious illness but why is it being made mandatory. Thus such mandates have been withdrawn in UK when it was mandated for health care workers and New Zealand HC has struck down the vaccine mandate for the police etc.

Bhushan: Unvaccinated does not pose any increase in threat to others compared to vaccinated individuals.

Bhushan: Such mandate cannot put a fetter upon the right to access essential good and services by such mandates. welfare policy of vaccination cannot affect right to life and livelihood and there is no reasonable nexus too.

Bhushan: if you had the infection you have a better protection and you develop antibodies against the virus.

Justice BR Gavai: can we go into this area which is an area of expertise. You have expertise Mr Bhushan with your two years of research. But we dont have it

Bhushan: a court which is mandated to protect fundamental rights cannot throw its hand up in air

Justice Gavai: so we have to see whether the central govt policy was in accordance with expert opinion or not ..that will be the limited question

Justice L Nageswara Rao: Union is saying its not mandatory

Bhushan: but states are mandating it

Justice Rao: if you take us deep into this area , we don't understand this area. science is a space of opinion, your opinion may be different than the other

Bhushan: I am not relying on opinion, only data and studies

Justice Gavai: but you just read an opinion which gives another two opinions

Bhushan: this is a study by medical scientists of people who had covid, this is not an opinion

Bhushan: why we hear about only one side of lockdown, covid etc in media is because funding of all this research in virology comes from either US NIOH and Institute of infectious diseases.

Bhushan: then we have Bill gates foundation where half is invested in foundation and other half in vaccine companies

Bhushan: the contrary views put forth by Dr Peter who have published papers on early impact of covid etc but its washed out by mainstream media and we dont hear about the results too. mainstream media also furthers a particular narrative

Bhushan: Among all the judges, all most all were vaccinated but even then they got infected with Omicron and the same is with people I know. Only a few did not get vaccinated like Dr Jacob Puliyel in this case

Justice Rao: there are so many people who have so many co morbidities like age etc.. why should we go into this? The question is whether there can be coercive action or vaccine mandates.. but for that we dont have to get into this arena

Bhushan: we have cited tons of scientific evidence. vaccines can lower your immunity. that phenomenon is known

Bhushan: Breakthrough cases of COVID was noticed in individuals who were doubly vaccinated.... (refers to a study based in Kerala)

Justice Rao: we have seen your notes. last night we have spent two hours reading all of this

Bhushan: large population who suffer side effects which are 90 to 95 percent of the affected do not report it as the process is too cumbersome and only the deaths are reported. its not that vaccines are harmless or benign. they do have adverse effects

Bhushan: The Brazil regulator had refused approval for Covaxin of BharatBiotech .. similarly various countries have been actively monitoring adverse events following immunisation. UK has recorded 1 among 106 as adverse effect recipients of AstraZeneca vaccine

Bhushan: Indian govt has not shown any seriousness in recording adverse effects and consequences of such vaccinations.

Bhushan: Informed consent can only be given if all data regarding a particular medication or vaccine is given to me. Here no phase 3 trial data is out but I don't know what is risk or benefit. govt is claiming something but govt claims are not enough.

Bhushan:  Trials are by companies and they have vested interest in vaccines and they have a hidden interest in concealment of such data

Bhushan: It is unethical and irresponsible to use such Untested vaccines on children. This is egregious as children are hardly affected by COVID. Chance of dying due to vaccine itself is more for a child than chances of dying due to covid. now it is being mandated

Bhushan: some schools are saying that not only you have to be vaccinated but also that your parents too need to be vaccinated.

Justice Rao: your two hours is going to be over now

Bhushan: I had sought three hours

SC: okay but wrap up now

Bhushan: there have been RTI requests seeking vaccine trial data so as to one knows what was found, response is vaccine companies are opposing giving you this data. How can such a public health requirement be denied despite the fact they may have fudged their own data

Bhushan now refers to the Aruna Shanbaug case to stress upon the concept of bodily autonomy and self determination

Bhushan:  In Puttuswamy case this court has recognised the concept of existence with dignity. Privacy recognises autonomy of individuals.

Bhushan: i have a right to weight cost and benefits of the vaccine. nobody can tell me that no no take the vaccine and we think its good for you. nobody can tell me that. only situation when it can be mandated is by not taking a vaccine i am posing a clear present danger to other

Bhushan refers to a judgment authored by Justice Cardozo.

Bhushan: coercive element of vaccination has been time and again not only been discouraged but also halted over centuries.

Adv Bhushan resumes and cites a Meghalaya HC judgment showing the importance of informed consent

Bhushan: Right to life and personal liberty cannot be impacted when there is no reasonable nexus between vaccination and the right to carry on a livelihood. Now next is judgment of Gauhati HC

Bhushan: some states are saying they are empowered under law to impose such restrictions. But it does not mean such restrictions can be imposed at the cost of others fundamental rights.

Bhushan: Researchers say jabbed and non jabbed individuals carry similar amount of viral load. Now let me refer to the New Zealand HC judgment.

Adv Bhushan refers to New Zealand HC judgment in: Yardley v Minister for Workplace Relations and Safety

Adv Bhushan cites New Zealand HC judgment which says "it is clear from the evidence that vaccination does not prevent persons contracting and spreading COVID-19, particularly with the Omicron variant."

Adv Bhushan now argues on non disclosure of vaccine trial data: it was stated on hyperbole that both vaccines were 110% safe.

Bhushan: In Maharashtra the mandate was sweeping you cannot go out etc. In Madhya Pradesh the mandate was put in place for ration for "their own safety" and district officials were later verbally directed that no one should be denied ration.

Bhushan: 97% of the people in Delhi have sero positivity and that means most of them have had the infection and thus they are more immune than all vaccines. It is vaccines which are creating more variants.

ASG Aishwarya Bhati seeks permission of the court to use a charging point in court

SC: Yes you can use any point

Adv Bhushan: Yes so long as you don't pull out any plug

Bhushan: Phase 3 trial of Covaxin had just begun and certain immunogenicity reports were sought. Thereafter in 2 days it was informed that the report was submitted from phase 1 and phase 2 trials and from ongoing trial 3 clinical data.

Bhushan: next day emergency use approval was granted to Covaxin.we dont know who were the people present in the meetings and many of them would be directly or indirectly on the payrolls of these companies. this is mind blowing.

Bhushan: Today we are being mandated to take vaccines of those whose phase 3 data is not available, the material presented to drug control authority is not presented to public. where is the question of informed consent

Bhushan: The information provided for Covishield is based on the studies done by AstraZeneca overseas. It only had 1600 participants. Just because the company which had submitted data to regulator asks the data not to be disclosed, it cannot be disclosed.

Bhushan: even if this affects crores of people and irrespective of the fact that Helsinki declaration mandates this ?

Bhushan: Percentage of children getting myocarditis is 1 in 1000 as compared to 1 in 10,000. Children can have covid at all 1 in 100 cases. Why will such children be given these vaccines?


Bhushan: unless you advertise that there is a mode to report adverse impacts of vaccine then how would such events be advertised at all ?

Bhushan: In an article of LANCET, it shows how case of child mortality was less in COVID. It was .17 percent per 1 million population. deaths were more frequent in older children than younger children

Bhushan: this means lakhs of children will have myocarditis. Now vaccines is being mandatory for child care institutions, ICSE made it mandatory for children to be vaccinated to sit in exams. 80 percent who have recovered from covid have more protection compared to vaccines

Bhushan: this court must exercise its power of judicial review upon any such arbitrary directive and strike down such vaccine mandates

Bhushan cites a US judgment: Even in  a pandemic constitution cannot be kept away and forgotten.

Bhushan: we have three prayers, one on vaccinemandate, one on disclosure of data and need to revamp the system to report adverse events. But mandates must be issued if and only if that there is evidence that unvaccinated will pose greater danger to the vaccinated.

Adv Prashant Bhushan concludes.

ASG Bhati for Central government: let me make some preliminary submissions

ASG Bhati: for adult, 96 percent adults have been given first dose and 80 percent adults have got the second dose. Now having achieved 96 percent coverage, the whole aspect of challenging the vaccination has paled into insignificance.

Justice Rao: he has not challenged the vaccination but he has challenged mandatory vaccination.

ASG Bhati: Centre has taken a decision not to make vaccination mandatory so far

Justice Rao: he says states are not following it. Please come tomorrow morning and argue

ASG Bhati: please have this on Tuesday. Such tall claims have been made on children and how MRNA vaccines cause myocarditis. But only Covaxin is given to children which inactivated virus and its not a MRNA vaccine

Matter to continue tomorrow

Central government to make submissions tomorrow

Court modifies the next date.
Matter to be next heard on March 8, 2022

Justice BR Gavai: Mr Bhushan they have to respond to your two years of research

ASG Bhati: also we have to rush now as Mr Bhushan is not vaccinated. His mask is also below the nose

Adv Bhushan: I even have cold, but not that one

ASG Bhati: we have to rush now

SC: its all in a lighter vein

Heairng ends. To continue on March 8



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