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Covid vaccine hesitancy? Use power to give jabs, Kerala HC said 25 years ago

Justice Kurup told TNIE that many are not willing to get vaccinated citing their fundamental rights.

Published: 07th October 2021 06:34 AM  |   Last Updated: 07th October 2021 06:34 AM   |  A+A-

Express News Service

KOCHI: Amid heated discussions on Covid vaccine hesitancy in the country, a 25-year-old judgment of the Kerala High Court may settle the issue in no uncertain terms in favour of those who argue for compulsory vaccination.

While those who are unwilling to take the vaccine shots say insistence on inoculation violates their fundamental rights, a judgment pronounced by Justice K Narayana Kurup on May 30, 1996, said, “In an area where infectious diseases are endemic and take a heavy toll on human lives, the state must be invested with adequate powers to intervene and take effective remedial measures by inoculation, vaccination and the like.”

Justice Kurup told TNIE that many are not willing to get vaccinated citing their fundamental rights. “Those who are not inoculated are more vulnerable than persons who are vaccinated. Hence, the authorities can use their powers considering the interest of society,” he added.  The 1996 judgment had stated, “In an organised society — without which there cannot be any safeguard of individual rights — there cannot be any right which is injurious to the community as a whole.”

He had passed the verdict while dismissing a petition filed by parents of a minor son, who was suffering from haemophilia, challenging the order of the then Kottayam district collector. The parents had refused to provide adequate medical treatment to the child. After noticing the incident, the district had directed the police to take custody of the child and admit him to the government hospital immediately.

The court had held that the fundamental rights claimed by the parents could not take precedence over the “police power to enforce public order,  morality and health”. The police power is founded on the theory that when there is a conflict between the rights of the individual and the interest of society. “The latter must prevail.” 

Police power the authority to establish rules of good conduct: 1996 verdict

The police power is thus the authority to establish those rules of good conduct and neighbourliness which are calculated to prevent a conflict of rights and to ensure that each (individual) has the uninterrupted enjoyment of his own, so far as that is reasonably consistent with a corresponding enjoyment by others.

“It is the government power of self-preservation which permits reasonable regulation of rights and property which are essential for preventing injury to the community. If the arguments of petitioners, in this case, are accepted, the government will have to be denied its authority of police power which is essential for the maintenance of the well-being of the members of the community at large.”

The judgment also cited the Supreme Court verdict in Gopalan vs State of Madras and a host of decisions of other countries such as the USA and UK which stated that putting restraint on the freedom of wrongdoing of one person is really securing the safety of the society at large. Therefore, restraint on liberty should be judged not only subjectively as applied to a few individuals who come within their operations but also objectively as securing the safety and liberty of a far greater number of individuals.



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