Dr Srinivas Kakkilaya Sends Legal Notice to Govt Over Mandatory Vaccination
Mangaluru: Renowned physician from Mangaluru Dr Srinivas Kakkilaya has sent a legal notice to the State Government, including Chief Minister B S Yediyurappa; Govt. Of Karnataka Chief Secretary; Govt of Karnataka Health Secretary; Dr.Ashwath Narayan, the Deputy Chief Minister; and Suresh Kumar-the state Education Minister, seeking that vaccination of students, faculty, and other staff should not be made mandatory or a prerequisite for resuming physical classes in schools and colleges. Dr Kakkilaya has argued that “imposing” vaccines would be a violation of the fundamental rights of individuals.
It should be noted that in May 2021 Dr Kakkilaya was booked under the Karnataka Epidemic Diseases Act for refusing to wear a mask in a supermarket and arguing with the staff of Jimmy’s Supermarket when they insisted. He said he had been treating Covid-19 patients for a year and that the government had made “foolish Rules”. Now, Dr Srinivas Kakkilaya through his advocate Chidanand Kedilaya has sent a notice on behalf of him and three others, including a second-year BA student and parents of two children studying in Class 10 in two private schools in the City.
Dr Srinivas Kakkilaya
The legal notice sent to Chief Minister B S Yediyurappa; Govt. of Karnataka Chief Secretary; Govt of Karnataka Health Secretary; Dr.Ashwath Narayan, the Deputy Chief Minister; and Suresh Kumar-the state Education Minister, requested them to take emergent steps for reopening of schools and colleges without any further delay. It warned of initiating proceedings against the government in case it goes ahead with the vaccination mandate with students. Following is the legal notice sent to the CM and other government authorities :
Ref. No: LN/MCK: 42/2021 Dt.26-06-2021
1. Hon’ble Chief Minister, Govt. Of Karnataka, II Floor, Vidhana Soudha, Ambedkar Vidi, Bengaluru-560001
2.The Chief Secretary, Govt. of Karnataka, Vidhana Soudha, Ambedkar Vidi, Bengaluru-560001
3. The Health Secretary, Ministry of Health & family welfare, Vidhana Soudha, Ambedkar Vidi, Bengaluru-560001
4. Hon’ble Sri. Dr.Ashwath Narayan, Hon’ble. Deputy Chief Minister, Government of Karnataka, Vidhana Soudha, Ambedkar Vidi, Bengaluru-560001
5. Sri Suresh Kumar,-Hon’ble Education Minister, Government of Karnataka, Vidhana Soudha, Ambedkar Vidi, Bengaluru-560001
I am instructed to issue this notice for and on behalf of (1). Dr. Sri. B. Srinivas Kakkilaya, S/o Late Sri. B.V Kakkilaya, Consultant Physician, LightHouse Polyclinic, Light House Hill Road, Mangalore 575001, (2). Sri Mallanagowda H Patil, S/o Sri Hanumantha Gowda, R/at M. Khanapur, Ramadurga taluk, Belgavi district, 591123, (3). Sri Yamunappa Meti, father of sachil Hanumantha Gowda Patil, SMR Westgate Heights Apts, Sturrock Road, Attavara, Mangalore-1, (4) Sri. Abdul Latheef M, F/o Liya Maryam, 102, Laws View Apartments, Sturrock Road, Falnir, Mangalore-1, hereinafter referred to as my clients, both for the interest of the public at large, so also, for the individual interest of my clients.
My client No. 1 is a practicing physician at Mangalore. No. 4 is the student pursuing his 2nd year B.A at St. Alysocious College Mangalore. My clients No 3 and 4 are parents of the students studying at 10th standard at St Aloysius and St Mary’s schools respectively. The notice in question is issued to protect the interest of the students at large in the state of Karnataka so also in the individual interest of my client No. 2 and children of my clients No. 3 and 4.
You are very well aware that the entire world is suffering due to covid pandemic. Our nation is not an exception. We have suffered immensely due to both first and second waves of covid pandemic. No doubt, thanks to the development in the medical field and dedicated services rendered by the health workers, so also, due to various effective steps taken by the government authorities, including that of our state government, we could control the rise in the number of cases and also in the number of fatalities. At the same time, the process of vaccination is under progress. At the same time, there are several reports which clearly suggest that the majority of citizens, be it in India or abroad, have already been infected by Covid and most of them without showing any symptoms have recovered.
Reports clearly suggest that a person once infected will develop immunity against infection from coronavirus further. No doubt, in spite of the same, in the guise of containing the covid pandemic, the process of vaccination is going on in India at a rapid speed. In the interregnum, many state governments/authorities have attempted to impose vaccination of the public at large, which was resisted by a certain section of the public on various grounds and the aspect has even been subjected to judicial scrutiny and in response to the notice issued by various constitutional Courts, the State authorities, as well as the central authorities, have made it very clearly acknowledged that it is a constitutional right of an individual alone to vaccinate himself, as such, the state authorities or the government authorities, either directly or indirectly cannot impose vaccination or compel the person to subject himself for the vaccination. Being the esteemed authorities, my client reasonably feels that your good selves are very well aware of various judicial pronouncements in this regard.
My clients have come across the press statement wherein the Hon’ble Deputy Chief Minister Dr. Ashwath Narayana, who by himself is a physician and learned person, has stated that the department has decided to conduct a vaccination drive at the college level to ensure vaccination to all students above the age of 18 and all the staffs as well. It was further reported that the date of re-opening of the offline classes will be announced soon after the completion of the first dose of vaccination to all eligible students and staff. It is hence evident from the statement said to have been issued by the Hon’ble minister which was widely published in the print media and shared by the minister himself on his Twitter handle, that in order to reopen the colleges, at least one jab of vaccination to the students, lecturers, and college staffs is mandatory. In the absence of which they shall not be permitted to enter the school premises or the colleges/schools cannot be permitted to resume the functioning.
In the humble opinion of my clients, if it is to be accepted as it is the voice of the Hon’ble Deputy Chief Minister is the voice of the government of Karnataka, they have every reason to believe that even as against or in derogation to the report which said to have been submitted by the expert committee constituted by the government, the State Government is contemplating to impose vaccination as a prerequisite for the opening of the schools and colleges. You may please note, any such attempt on the part of the State Government definitely is not in the interest of the public at large or neither in the interest of the students nor any such decisions could have any legal sanction. It may not be out of place to mention here that imposition of such rules is nothing else but a violation of the fundamental right of the individual (be it students, teaching or non-teaching staffs) which is provided under the constitution, but the same also amounts to the willful violation of the judgments rendered by various High Courts.
No doubt, to our knowledge, mandatory imposition of the covid vaccine on a section of people is not subjected to the judicial scrutiny by our home High Court or by the Honourable Supreme Court of India, however, the forceful imposition of the vaccination is subject to the judicial scrutiny before the Honourable High Court of Meghalaya, so also, the Honourable High Court of Gujrath. In the judgment rendered by the division bench of the Honourable High Court of Meghalaya at Shillong, in PIL No. 6/2021, (Registrar General, Vs. State of Meghalaya High Court of Meghalaya) vide order dated 23-06-2021, Division Bench of Hon’ble High Court of Meghalaya has held that
“Article 21 encompasses within its fold, right to health, as a fundamental right. By that same analogy, the right to health care, which includes vaccination, is a fundamental right. However, vaccination by force or being made mandatory by adopting coercive methods vitiates the very fundamental purpose of the welfare attached to it. It impinges on the fundamental right(s) as such, especially when it affects the right to means of livelihood which makes it possible for a person to live. As held in Olga Tellis & Ors vs. Bombay Municipal Corporation & Ors reported at AIR 1986 SC 180 = (1985) 3 SCC 545, the right to life includes the right to the means of livelihood. Any action of the State which is in absolute derogation of this basic principle is squarely affected by Article 19(1)(g). Although, Article 19(6) prescribes “reasonable restrictions” in the “interest of the general public”, the present instance is exemplary and clearly distinguishable. It affects an individual’s right, choice, and liberty significantly more than affecting the general public as such or for that matter, the latter’s interests being at stake because of the autonomous decision of an individual human being of choosing not to be vaccinated.
It is more about striking the right balance between an individual’s rights vis-à-vis the right of the public at large. However, in substantiation of Mill’s theory of the liberty to exercise one’s right until it impinges on the right of another; here too, the “welfare state” is attempting to secure the rights of others, which – though legitimate – is palpably excessive owing to the procedure adopted by it. Another pivotal question emerges as to whether any notification/order published by the State Government and/or its authority can be understood as a prescription by “law” for the purposes of prohibiting a greater degree of rights; i.e., fundamental rights. In other words, can a State Government and/or its authority issue any notification/order which is likely to have a direct effect on the fundamental rights of its citizens especially on a subject matter that concerns both public health and the fundamental rights of the individual person?” (Emphasis supplied by me)
Hon’ble court further held that-
“There are several ambiguities on the procedural and substantive aspects of the concerned notification/order. Doubts are cast on whether the coercive assertion of one’s fundamental right can tend to abrogate another’s equally placed fundamental right. The question also arises whether fundamental rights can be forcefully imposed even if the beneficiary is not inclined to its exercise, because, if the latter is undertaken, then there is a risk of running into infringing on the fundamental right to privacy and exercise of personal liberty. Furthermore, whether to subject oneself to an intrusion of his/her body, even if of minor intensity, e.g., through a needle, concerns issues of personal and bodily autonomy and bodily integrity, similar to abortion rights or non-sterilization rights or even sex reassignment surgeries, irrespective of what consequences the individual might be inviting.
This finds mention in decisions of the European Commission and Court of Human Rights [X vs. the Netherlands of 1978 (decision rendered on 4th December 1978); X vs. Austria of 1979 (decision rendered on 13th December 1979)] which has become truer in the present times across the world than ever before. Compulsorily administration of a vaccine without hampering one‟s right to life and liberty based on informed choice and informed consent is one thing. However, if any compulsory vaccination drive is coercive by its very nature and spirit, it assumes a different proportion and character.” (Emphasis supplied by me)
The aforesaid judgment rendered by Honourable High Court of Meghalaya, in the absence of any contra judgment by our Honourable High Court or the Honourable Supreme Court, constitute a binding precedent and the State of Karnataka is also bound by the judgment rendered by the Honourable High Court of Meghalaya. Further, in the various judgments rendered by the High Court’s so also the Apex Court, the constitutional Courts have made it very clear that the government has no authoritative rights to interfere with individual rights or even impose mandatory vaccination or mandatory medical check-ups. In fact, even in the statement given by the Secretary of the Ministry of Health and Family welfare, namely Sri. Anurag Sinha, representing the government of India, has made it very clear that taking the covid vaccine is entirely voluntary and there is no relationship whatsoever to the provisions of the government facilities, citizenship, job etc to the vaccine.
You may please note, if the statement of Honourable Deputy Chief Minister of Karnataka is pressed into service, the proposed rule that may be framed will definitely go against the decision of the central govt, so also the provisions of the Constitution. When such is the case, it is evident that the state cannot make it mandatory to the students, teaching and non-teaching staff or parents to get them vaccinated before resuming offline classes. The decision of the Government is coercive in nature and compelling to get students, teaching and non-teaching staff, and parents, which is per se unconstitutional. Since the aforementioned mandatory directory is a prerequisite for the commencement of the offline classes, my clients wonder, the classes may not commence in the near future. You are very well aware that the academic career of the students has immensely suffered and it is not advisable to prolong the present situation any further.
Number 2 amongst my clients being the students and no. 3 and 4 amongst my clients being the parents of the students studying in the state of Karnataka are seriously aggrieved by the statement of Dr. Ashwath Narayan which appears to be issued based on the reported decision of the state government. Further No. 1 amongst my client being a medical practitioner and social activist having conducted immense medical investigation in the field of covid is under the very firm opinion that the present covid virus is not life-threatening to the students, the children in particular. As such, my clients reasonably feel that imposition of restriction by making vaccination mandatory to the students as well as to teaching and non-teaching staff for resumption of the offline classes is highly illegal, illusory and unscientific, apart from the fact that the same amounts to contempt of court. Needless to state that imposition of such unscientific rules will definitely lead to complications and the resumption of offline classes in the schools and colleges will definitely be postponed indefinitely.
Under these circumstances, your good selves are requested and called upon not to make vaccination mandatory or make the same as prerequisite for the opening of the offline classes and in the larger interest of the students, your good selves are requested to take necessary emergent steps for opening of the schools and colleges without any further delay. Any failure on your part to comply with the aforesaid valid, lawful, and scientific demands or any actions in contradiction to the aforementioned decisions, which are based on the judgments of the law Courts would result in the initiation of necessary proceedings as against you and hence taking into positive assertions of my clients your good selves are once again requested to take positive steps as has been requested by my clients.
M. Chidanand Kedilaya,
Advocate, Karangalapay, Mangaluru