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2021 DIGILAW 912 (PAT)

Kumari Vaishnavi v. Union Of India

2021-09-07

S.KUMAR, SANJAY KAROL

body2021
JUDGMENT 1. Is the State under an obligation to provide for a special programme to vaccinate persons with disability, more so, affected with leprosy, in the wake of ensuing wave of Pandemic Covid-19 is the issue arises for consideration in the present case. 2. Persons with disability, undoubtedly, remain in vulnerable situations and experience marginalization thus exposing themselves openly to the virus. Most of such persons suffer from co- morbidities, weakening their immune system. They also suffer due to lack of social protection and income security. 3. Right to health is the fundamental right stands well established. By virtue of Article 21 and Article 47 of the Constitution of India, the State is under an obligation to ensure raising the standard of public health. (See- Passchim Banga Khet Mazdur Samity v. State of West Bengal, (1996) 4 SCC 37 ; State of Punjab & Ors. V. Mohider Singh Chawla Ors, (1997) 2 SCC 83 ; Union of India v. Moolchand Kharaiti Ram Trust, (2018) 8 SCC 32). 4. The duty to do so is all the more onerous in relation to the persons suffering from comorbidities and/or disability. The petitioners have highlighted the grievance of the persons falling within the definition of the Rights of Persons with Disabilities Act, 2016 (hereinafter referred to as the Act). In terms of the instant petition, petitioners want the State to provide a mechanism for door to door vaccination of such persons. Petitioners have highlighted as to how persons residing in affected colonies within the State of Bihar are being deprived of their right of getting vaccinated. 5. Individuals with disability are unable to adhere to safety measure because of their condition. Individuals with visual impairment, locomotors disability, cerebral palsy etc cannot ensure safe practice as they require assistance at the end of the day for their basic needs. The moment they take assistance from another individual the possibility of them getting infected with COVID-19 increases. 6. This situation is more severe in case of individuals who need assistance for walking or those who are facing problem with reference to their eye sight. They don't just need to take assistance of another person but also foreign objects in public place by touching or holding them in order to walk properly. Since the major route of virus transmission is through contact, hence they are most vulnerable. 7. They don't just need to take assistance of another person but also foreign objects in public place by touching or holding them in order to walk properly. Since the major route of virus transmission is through contact, hence they are most vulnerable. 7. Moreover, certain individuals because of their health condition have weak immune system (hemolphilia, thalassimia etc.) which aggravates their condition. 8. The situation of person affected with leprosy is worse than that of Individuals with Benchmark Disability because of the stigmatization they have to face in society because of its infectious nature. Furthermore, individuals affected with Leprosy are worst affected by the pandemic because of their pre-existing conditions which tends to further aggravate the situation. 9. Considering the fact India is the country with largest number of Leprosy affected people around the world. Hence vaccination of such individual without government support is far from reality. 10. As per Sections 8 and 25 of the Act, the National Disaster Management Authority and the State Disaster Management Authority and more specifically the District Disaster Management Authority are to maintain records and of details of persons with disabilities in the District. Also take suitable measures to inform such persons of any situations of risk so as to enhance disaster preparedness. Also the Government is under an obligation to take necessary measures for the persons with disability to provide- (a) free healthcare in the vicinity specially in rural area subject to such family income as may be notified; (b) barrier-free access in all parts of Government and private hospitals and other healthcare institutions and centres; (c) priority in attendance and treatment. 11. Even as per the international conventions, Articles 11 and 25 of the Convention of Rights of Person with Disability, such right stands protected. 12. In Vincent Panikulangara v. The Union of India (1987) 2 SCC 165 , the court in the case opined that: "A healthy body is a very foundation of all human activities. In a welfare state therefore it is the obligation of the state to ensure the creation and sustaining of conditions congenial to good health. The Hon'ble Apex Court ruled further that while endorsing what ahs been said above we would refer to Article 47, Part IV of the Constitution" 13. In a welfare state therefore it is the obligation of the state to ensure the creation and sustaining of conditions congenial to good health. The Hon'ble Apex Court ruled further that while endorsing what ahs been said above we would refer to Article 47, Part IV of the Constitution" 13. In Akhil Bhartiya Soshitkaramchari Sangh v. The Union of India " (1981) 1 SCC 246 , the Hon'ble Apex Court held as under: "The fundamental rights are intended to foster the ideal of a political democracy and to prevent the establishment of authoritarian rule but they are of no value unless they can be in force by resort to courts. So they are made justifiable. But it is also evident that notwithstanding their great importance, the directive principles cannot in their nature of things be enforced in a court of law. It does not mean that directive principles are less important than that of fundament al rights." 14. In Passchim Banga Khet Mazdur Samity v. State of West Bengal, (1996) 4 SCC 37 , the Hon'ble Apex Court held as under: "It is the Constitutional obligation of the state to provide adequate medical services to its people. Whatever is necessary for this purpose has to be done." 15. In Union of India v. Moolchand Kharaiti Ram Trust (2018) 8 SCC 32 the Hon'ble Apex Court held as under: ".......56. Even these rights have to give way to the human rights. It is an obligation of the Government to provide life-saving drugs to have-nots at affordable prices so as to save their lives, which is part of Article 21 of the Constitution of India. It is equally an obligation of the State to devise such measures that have-nots are not deprived of the very treatment itself. Administering medicines is also a part of medical therapy...... .....67. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail of those facilities. Preservation of human life is thus of paramount importance. Government is duty-bound to provide timely care to persons in serious conditions. Medical facilities cannot be denied by the Government on the ground of non-availability of bed. Denial of medical assistance on unjust ground was held to be in violation of right to life under Article 21." 16. In State of Punjab & Ors. Government is duty-bound to provide timely care to persons in serious conditions. Medical facilities cannot be denied by the Government on the ground of non-availability of bed. Denial of medical assistance on unjust ground was held to be in violation of right to life under Article 21." 16. In State of Punjab & Ors. V. Mohider Singh Chawla Ors (1997) 2 SCC 83 , the Hon'ble Apex Court held as under: "It is now settled law that right to health is integral to the right to life. Government has a constitutional obligation to provide health facilities." 17. In Vincent Panikurlangara v. Union of India, (1987) 2 SCC 165 , the Hon'ble Apex Court held as under "16. In a welfare State, therefore, it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health." 18. With the intervention of the Court, the issue being of prime importance was taken up by the State Government and dealt with reasonable despatch. 19. Vide affidavit dated 13th August, 2021 filed on behalf of respondent no.3, namely Additional Chief Secretary, Health Department, Govt. of Bihar, the Government has placed on record the special mechanism put in place for vaccinating the elderly and persons with disabilities. Nodal Officer stands appointed. Apart from making arrangement for transportation of such persons to the Covid Vaccination Centres (CVCs), Mobile Vans, (Tika Express) are also deputed to visit the colonies for vaccinating every person on priority basis, be it of 45 - 90 years or above. In fact, Rashtriya Bal Swasthya Karyakaram (RBSK) teams are constituted to sensitize the people, including persons with disabilities making them aware. Places where persons suffering with leprosy are staying are also being visited. All this has had a great impact amongst the populace which has resulted into not only acceptance of the Government's programme, but also, people volunteering themselves to get inoculated. A District Level Nodal Officer termed as District Immunization Officer (DIO) stands appointed only to expedite this process of vaccination. 20. Vide affidavit dated 24th August 2021 filed on behalf of respondent no.3, namely Additional Chief Secretary, Health Department, Govt. of Bihar it stands explained that the authorities are also helping the people in the process of registration for getting themselves vaccinated. 21. 20. Vide affidavit dated 24th August 2021 filed on behalf of respondent no.3, namely Additional Chief Secretary, Health Department, Govt. of Bihar it stands explained that the authorities are also helping the people in the process of registration for getting themselves vaccinated. 21. In view of the stand taken by the respondents, the writ petition stands disposed of with the following directions:- (i) In keeping with the decisions of Hon'ble the Apex Court with respect to Right to Health under Article 21 of the Constitution of India and also Section 25(1) of the Right to Persons with Disabilities Act 2016, the State, to take all necessary steps to ensure accessibility and availability of vaccines to Persons with Disability. (ii) Special efforts be made to reach out to Persons with Disability in the rural areas to get them inoculated. (iii) The District Disaster Management Authority constituted under the Disaster Management Act, 2005 shall maintain record of details of persons with disabilities in the district and take suitable measures to inform such persons of any situations of risk so as to enhance disaster preparedness. (iv) Public Awareness Campaigns such as those noted above, must continue in full force to ensure wider reach of the health benefits of vaccination, and the urgent need for the same. (v) Persons with Disability, either when such disability is clearly visible to the authorities present at the Covid Vaccination Centers (CVCs), or upon production of documents certifying such disability, be exempted from waiting in line, and be given the vaccine on priority. (vi) The State to explore the possibilities of door to door vaccination, particularly for those who are aged or suffer from mobility issues, or are immobile etc. (vii) The Court places on record its appreciation of all the assistance of learned counsel, who appeared in this matter for the good of the general public. 22. The Writ petition stands disposed of in the above terms. 23. Interlocutory Application, if any, shall stand disposed of.