MEMORANDUM for PETITIONER STATEMENT OF T

JURISDICTION
249 - PETITIONER

1st NLUO PHFI Public Health Law National Moot Court Competition

BEFORE THE HON’BLE SUPREME COURT OF DIANA

IN THE MATTER OF –

PUBLIC INTEREST LITIGATION No._________/2021

(Under Article 32 of the Constitution of Diana)

FREEDOM FOR ALL ……………………. PETITIONER

v.

UNION OF DIANA AND STATE OF ARIANA …………. RESPONDENTS

MEMORANDUM FOR THE PETITIONERS

1st NLUO PHFI Public Health Law National Moot Court Competition I
MEMORANDUM for PETITIONER TABLE OF CONTENTS

TABLE OF C ONTENTS

TABLE OF C ONTENTS .................................................................................................................... II

INDEX OF AUTHORITIES ............................................................................................................... V

INDEX OF ABBREVIATIONS ...................................................................................................... XVI

STATEMENT OF JURISDICTION ............................................................................................. XVIII

STATEMENT OF FACTS ............................................................................................................. XIX

ISSUES RAISED .......................................................................................................................... XXI

SUMMARY OF ARGUMENTS .................................................................................................... XXII

ARGUMENTS ADVANCED ............................................................................................................... 1

ISSUE (1): THE WRIT PETITION FILED BY FREEDOM FOR ALL UNDER ART. 32 OF THE
CONSTITUTION OF DIANA IS MAINTAINABLE .......................................................................... 1

A. THE PETITIONER HAS REQUISITE LOCUS STANDI........................................................ 1

B. THE PETITIONER CONCERNS A MATTER OF PUBLIC INTEREST ................................. 2

C. THE EXISTENCE OF AN ALTERNATE REMEDY IS NOT A BAR UNDER ART. 32 ............ 2

ISSUE (2): THE EAA, 2021 IS VIOLATIVE OF PART III OF THE CONSTITUTION OF DIANA ... 3

A. THE EAA, 2021 FAILS TO MEET THE REQUIREMENTS OF THE TEST OF

PROPORTIONALITY ................................................................................................................ 3

1. THE ACTION IS NOT SANCTIONED BY LAW ...................................................................... 4

2. THE LEGISLATIVE ACTION DOES NOT HAVE A RATIONAL CONNECTION TO A

LEGITEMATE AIM NECESSARY IN A DEMOCRATIC SOCIETY ............................................ 4

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MEMORANDUM for PETITIONER TABLE OF CONTENTS

3. THERE IS AN EQUALLY EFFECTIVE, LESS RESTRICTIVE ALTERNATIVE AVAILABLE ....... 6

4. THERE IS A LACK OF PROCEDURAL GUARANTEES AGAINST ABUSE OF INTERFERENCE

10

B. THE EAA, 2021 SUFFERS FROM VICE OF VAGUENESS .............................................. 12

C. THE EAA IMPOSES AN UNREASONABLE CLASSIFICATION VIOLATING THE

CONDITIONS OF ART. 14 ...................................................................................................... 13

D. EAA 2021 VIOLATES THE DOCTRINE OF LEGITIMATE EXPECTATION ................ 14

E. EAA 2021 REPRESENTS AN EXCESSIVE DELEGATION OF POWER ......................... 15

ISSUE (3): THE REGULATION ISSUED BY THE STATE OF ARIANA IS UNCONSTITUTIONAL

AND ULTRA VIRES TO THE EA, 1987 ....................................................................................... 16

A. THE SAID REGULATION VIOLATES THE RIGHT TO LIFE AND PERSONAL LIBERTY
ENSHRINED IN ART. 21 OF THE CONSTITUTION OF DIANA ............................................... 16

1. THE SAID REGULATION INFRINGES UPON THE RIGHT TO HEALTH AND TO REFUSE
MEDICAL TREATMENT ................................................................................................... 17

2. THE SAID REGULATION VIOLATES THE RIGHT TO INFORMED CONSENT ....................... 18

3. THE SAID REGULATION DOES NOT PRESERVE THE RIGHT TO PRIVACY ........................ 19

B. THE SAID REGULATION IS NOT IN ACCORDANCE WITH THE PRINCIPLES OF ART. 14

OF THE CONSTITUTION OF DIANA ...................................................................................... 20

1. THE SAID REGULATION CREATES UNREASONABLE CLASSIFICATIONS AND A CLASS

WITHIN A CLASS............................................................................................................. 20

2. THE SAID REGULATION IS A RBITRARY AND EXCESSIVE ............................................... 21

C. THE SAID REGULATION VIOLATES THE RIGHT TO FREEDOM OF MOVEMENT AND

TRADE .................................................................................................................................... 22

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MEMORANDUM for PETITIONER TABLE OF CONTENTS

D. THE SAID REGULATION VIOLATES THE RIGHT TO FREEDOM OF RELIGION UNDER

ART. 25 .................................................................................................................................. 24

E. THE SAID REGULATION IS ULTRA VIRES AND BEYOND THE SCOPE OF THE EA, 198724

PRAYER .................................................................................................................................. XXIV

1st NLUO PHFI Public Health Law National Moot Court Competition IV
MEMORANDUM for PETITIONER INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

SUPREME COURT CASES

Aarushi Dhasmana v Union of India & Ors, (2013) 9 SCC 475. _____________________ 18

Ajay Hasia v Khalid Mujib Sehravardi, (1981) 1 SCC 722 _________________________ 21

Anil Dey vs State Of West Bengal, (974) 4 SCC 514 ______________________________ 3

Anita Kushwaha v Pushap Sudan, (2016) 8 SCC 509. ______________________________ 7

Anita Kushwaha v. Pushpa Sadan AIR 2016 SC 3506. ____________________________ 16

Arnab Ranjan Goswami v The Maharashtra State Legislative Assembly & Ors. (2020) SCC
OnLine SC 1100 __________________________________________________________ 2

Aruna Ramchandra Shanbaug v Union of India & Ors, (2011) 4 SCC 454 _____________ 17

Balram Prasad v Kunal Saha, (2014) 1 SCC 384. ________________________________ 11

Bandhua Mukti Morcha v Union of India, (1984) 3 ________________________________ 1

Bhim Singh v State of J & K, (1985) 4 SCC 677. ________________________________ 10

Board of Trustees of the Port of Bombay v Dilipkumar Raghavendranath Nandkarni, (1983) 1

SCC 124 ________________________________________________________________ 16

Brij Mohan Lal v Union of India & Ors, (2012) 6 SCC 502. ________________________ 16

Budhan Choudhry & Ors v The State of Bihar, AIR 1955 SC 191. ___________________ 13

Canara Bank v V. K. Awasthy, (2005) 6 SCC 321. ________________________________ 7

Chameli Singh v State of U.P. (1996) 2 SCC 549 ________________________________ 16

Chintaman Rao v The State of M.P., 1951 AIR SC 118. ___________________________ 23

Chiranjit Lal Chowdhuri v The Union of India, AIR 1951 SC 41 ____________________ 13

1st NLUO PHFI Public Health Law National Moot Court Competition V
MEMORANDUM for PETITIONER INDEX OF AUTHORITIES

Common Cause v Union of India, (2014) 5 SCC 338 _____________________________ 17

CPIO v Subhash Chandra Aggarwal, (2020) 5 SCC 481.____________________________ 7

D. C. Wadhwa v State of Bihar, (1987) 1 SCC 378. _______________________________ 1

Dilip S. Dahanukar v Kotak Mahindra Co Ltd & Anr, (2007) 6 SCC 528. _____________ 11

Re: Distribution of Essential Supplies & Services During Pandemic, Suo Motu Writ Petition
(Civil) No. 3 of 2021, 2021 SCCOnline SC 411 _________________________________ 16

E. P. Royappa v State of Tamil Nadu, (1974) 4 SCC 3. ____________________________ 10

Fertilizer Corpn Kamgar v Union of India, AIR 1981 SC 844 ________________________ 1

Foreward Constr Co v Prabhat Mandal, (1986) 1 SCC 100 __________________________ 1

Francis Coralie Mullin v The Adm’n, Union Territory of Del & Ors, (1981) 1 SCC 608 __ 16

Guj. Mazdoor Sabha v The State of Guj., (2020) 10 SCC 459. ______________________ 16

Gurpal Singh v State of Punjab, (2005) 5 SCC 136.________________________________ 1

Harakchand Ratanchand Banthia & Ors. v Union of India & Ors, (1969) 2 SCC 166._____ 12

Imtiyaz Ahmad v State of U. P. & Ors, (2011) 15 SCC 601 _________________________ 7

In Re: Delhi Laws Act, 1912 (1951) AIR 332.___________________________________ 15

Indian Express Newspapers v Union of India, (1985) 1 SCC 641. ____________________ 10

Indian Young Lawyers Ass’n v. State of Kerala, (2019) 11 SCC 1. ___________________ 24

Janata Dal v. H.S. Chowdhary & Ors, (1992) 4 SCC 305. ___________________________ 2

Janta Dal v H. S. Chowdhary, (1992) 4 SCC 305__________________________________ 1

Jatindra nath v Province of Bihar, AIR 1949 FC 175. _____________________________ 15

John Vallamattom & Anr v Union of India, (2003) 6 SCC 611 ______________________ 24

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MEMORANDUM for PETITIONER INDEX OF AUTHORITIES

Justice K. S. Puttaswamy (Retd) v Union of India, (2019) 1 SCC 1. ___________________ 3

K. A. Abbas v The Union of India & Anr, (1970) 2 SCC 780. _______________________ 12

K. K. Kouchunni v State of Madras, AIR 1959 SC 725. ____________________________ 2

Kalpana Mehta & Ors v Union of India & Ors, (2017) 7 SCC 302 ___________________ 18

Kartar Singh v State of Punjab, (1994) 3 SCC 569. _______________________________ 12

Kesavananda Bharati v State of Kerala & Anr, (1973) 4 SCC 225. ___________________ 10

Khatri II v State of Bihar, (1981) 1 SCC 627. ____________________________________ 7

Krishna Kumar Singh & Anr v State of Bihar, (1998) 5 SCC 643. ___________________ 25

Kumari Srilekha Vidyarthi v State of U. P., (1991) 1 SCC 212. _____________________ 10

M. C. Mehta v. Union of India & Ors, (1987) 1 SCC 395. ___________________________ 4

M. J. Sivani v State of Karnataka & Ors, (1995) 6 SCC 289. ________________________ 16

M. Janardhan Rao v Joint Commissioner of Income Tax, (2005) 2 SCC 324. ____________ 3

M.C. V. S. Arunachala Nadar Etc v The State of Madras & Ors, 1959 AIR SC 300.______ 23

M/S. Shantistar Builders v Narayan Khimalal Totame & Ors (1990) 1 SCC 520 ________ 16

Madhav Hayawadanrao Hoskot v State of Maharashtra, (1978) 3 SCC 544. ____________ 10

Maharashtra Land Development Corpn. & Ors v State of Maharashtra & Anr, (2011) 15 SCC
616. ____________________________________________________________________ 3

Malay Kumar Ganguly v Dr. Dukumar Mukherjee & Ors, (2009) 9 SCC 221. __________ 18

Maneka Gandhi v Union of India, (1978) 1 SCC 248. _____________________________ 10

Modern Dental College & Research Centre & Ors v State of M.P. & Ors, (2012) 4 SCC 707.3

Mohini v State of Karnataka, (1992) 3 SCC 666 __________________________________ 2

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MEMORANDUM for PETITIONER INDEX OF AUTHORITIES

Monnet Ispat & Energy Ltd v Union of India, (2012) 11 SCC 1. _____________________ 14

Municipal Corpn. of the City of Ahmedabad v Jan Mohd. Usmanbhai, (1986) 3 SCC 20. __ 2

Nazir Mohamed v J. Kamala & Ors, (2020) SCC OnLine SC 676. ____________________ 3

Nisha Priya Bhatia v Union of India & Anr, (2020) 13 SCC 56 ______________________ 12

Olga Tellis & Ors v Bombay Municipal Corpn & Ors, (1985) SCC 3 545 _____________ 16

Om Kumar & Ors v Union of India, (2001) 2 SCC 386. ____________________________ 7

Om Kumar v Union of India, (2010) 2 SCC 386._________________________________ 21

Padma Sundara Rao v State of T.N, (2002) 3 SCC 533 ____________________________ 25

People's Union for Democratic Rights v Union of India, (1982) 3 SCC 235. _____________ 1

People's Union of Civil Liberties v Union of India Anr, (1997) 1 SCC 301; Union of India &
Ors v P. Balasubrahmanayam, 2021 SCC OnLine SC 169. _________________________ 10

Prahlad v State of Haryana, (2015) 8 SCC 688. __________________________________ 19

Prakash Nath Khanna v Commissioner of Income Tax, (2004) 9 SCC 686 _____________ 25

Punjab Communications Ltd. v Union of India, (1999) 4 SCC 727. __________________ 14

R. K. Dalmia v Del Adm’r, AIR 1962 SC 1821. _________________________________ 21

Rai Sahib Ram Jawaya Kapur v State of Punjab, AIR 1955 SC 549. __________________ 15

Ramana Dayaram Shetty v Int’l Airport Auth. of India & Ors, (1979) 3 SCC 489. _______ 20

Ranjit Thakur v Union of India & Ors, (1987) 4 SCC 611. _________________________ 10

Raunaq Int’l Ltd v I.V.R. Constr Ltd, (1999) 1 SCC 492 ____________________________ 1

Reserve Bank of India v Jayantilal N. Mistry, (2016) 3 SCC 525. ____________________ 18

Romesh Thapar v State of Madras, AIR 1950 SC 124 ______________________________ 2

1st NLUO PHFI Public Health Law National Moot Court Competition VIII
MEMORANDUM for PETITIONER INDEX OF AUTHORITIES

Rudul Shah v. State of Bihar, (1983) 4 SCC 141. _________________________________ 7

Rustom Cavasjee Cooper (Banks Nationalisation) v Union of India, (1970) 1 SCC 248. __ 20

S. K. Kantha v Oamarulla Islam, (2005) 11 SCC 507 ______________________________ 1

S. P. Gupta v Union of India, AIR 1982 SC 149. __________________________________ 1

Samira Kohli v Dr. Prabha Manchanda & Anr, (2008) 2 SCC 1 _____________________ 18

Sansar Chand Atri v/s State of Punjab and Ors. (2002) 4 SCC 154. ___________________ 21

Sardar Syedna Taher Saifuddin Saheb v State of Bombay 1962 AIR SC 853 ___________ 24

Sarla Verma v Del Transport Corpn, (2009) 6 SCC 121. ___________________________ 11

Saurabh Chaudhari v Union of India, (2003) 11 SCC 146 __________________________ 20

Sharma Transport v Gov, of A. P., (2002) 2 SCC 188. ____________________________ 11

Shayara Bano v Union of India, (2017) 9 SCC 1 _________________________________ 10

Sheela Barse & Ors v Union of India & Ors, (1986) 3 SCC 596 _____________________ 16

Sheela Barse v Union of India, (1988) 4 SCC 226. ________________________________ 7

Shreya Singhal v Union of India, (2005) 5 SCC 1.________________________________ 12

Shri Ram Krishna Dalmia v Shri Justice S. R. Tendolkar, 1958 AIR SC 538 ___________ 20

State of Guj. v Hon’ble Mr. Justice R.A. Mehta (Retd), (2013) 3 SCC 1. ______________ 25

State of Guj. v Shri Shantilal Mangaldas & Ors, (1969) 1 SCC 509. __________________ 11

State of H.P. & Anr vs Umed Ram Sharma & Ors, (1987) 1 SCC 602. _________________ 4

State Of Himachal Pradesh v A Parent Of A Student Of Medical College Simla & Ors (1985)
SCR (3) 676. _____________________________________________________________ 1

State of Jharkhand v Brahmputra Metallics Ltd, 2020 SCC OnLine SC 968. ___________ 14

1st NLUO PHFI Public Health Law National Moot Court Competition IX
MEMORANDUM for PETITIONER INDEX OF AUTHORITIES

State of M.P. v Baldeo Prasad, AIR 1961 SC 293. ________________________________ 12

State of Madras v V.G. Row, Union of India & State of Travancore-Cochin, 1952 AIR SC 196.
________________________________________________________________________ 5

State of Mysore & Anr. v P. Narasinga Rao, AIR 1968 SC 349 _____________________ 20

State of U.P and Ors. v/s Committee of Management, Mata Tapeshwari Saraswathi Vidya
Mandir and Ors. (2010) 1 SCC 639 ___________________________________________ 21

State of West Bengal v Anwar Ali Sarkarhabib, AIR 1952 SC 75 ____________________ 20

The Commissioner Hindu Religious Endowments, Madras v Shri Lakshmindra Thritha

Swaminar of Sri Shirur Mutt, AIR 1954 SC 282. _________________________________ 24

The State of Bombay v F. N. Balsara, AIR 1951 SC 318 ___________________________ 13

The State of West Bengal v Anwar Ali Sarkar, AIR 1952 SC 75. ____________________ 13

Union of India & Ors v Hindustan Development Corpn & Ors, (1993) 1 SCC 467. ______ 14

Union of India v Filip Tiago De Gama of Vedem Vasco De Gama, (1990) 1 SCC 277 ____ 25

Union of India v Lt. Col. P.K. Choudhary, (2016) 4 SCC 236 _______________________ 14

V. Krishnakumar v State of Tamil Nadu & Ors, (2015) 9 SCC 388. __________________ 11

Vasantlal Maganbhai Sanjanwala v State of Bombay, AIR 1961 SC 4. ________________ 15

Vincent Panikurlangara v Union of India & Ors, (1987) 2 SCC 165. ___________________ 4

STATUTES

The Compulsory Vaccination Act 1892. _______________________________________ 25

The Consumer Protection Act 2019, s 2(11)(ii).__________________________________ 14

The Consumer Protection Act 2019, s 2(11). ____________________________________ 14

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MEMORANDUM for PETITIONER INDEX OF AUTHORITIES

The Consumer Protection Act 2019, s 2(34). ____________________________________ 14

The Consumer Protection Act 2019, s 2(7). _____________________________________ 14

The Drugs and Cosmetics Rules 1945, s 6.2. ____________________________________ 14

United Kingdom Public Health (Control of Diseases) Act 1984 s 45C ________________ 23

United Kingdom Public Health (Control of Diseases) Act 1984, s 45B ________________ 23

United Kingdom Public Health (Control of Diseases) Act 1984, s 45E. _______________ 23

Vaccination Act 1880______________________________________________________ 25

Vaccine Damage Payments Act 1979, s 1, s 2.____________________________________ 8

Vaccine Damage Payments Act 1979, s 4. _______________________________________ 8

Vaccine Damage Payments Act 1979. __________________________________________ 8

HIGH COURT CASES

Del Municipal Workers Union v Del ___________________________________________ 1

Emperor v Jeshinbhai Ishwarlal Dhobi, AIR 1950 Bom 363._________________________ 2

GNCT of Del v Naresh Kumar, 2010 SCC OnLine Del 3942. _______________________ 14

Marimuthu v Inspector of Police, 2016 SCC OnLine Mad 10175 ____________________ 19

Master Hridaan Kumar Minor Through & Ors v Union Of India & Anr, W.P. (C) No. 343/2019.
_______________________________________________________________________ 19

Shampa Singha v State of West Bengal, 2019 SCC OnLine Cal. 153. _________________ 17

RULES

Indian Medical Council (Professional Conduct, Etiquette & Ethics) Regulations 2002. ___ 19

CANADIAN CASE LAW

1st NLUO PHFI Public Health Law National Moot Court Competition XI
MEMORANDUM for PETITIONER INDEX OF AUTHORITIES

Her Majesty the Queen v David Edwin Oakes, [1986] 1 S.C.R. 103. ____________________ 3

Her Majesty, The Queen v Brandon Roy Dyment (1988) 2 S.C.R. 417 ________________ 19

Malette v Shulman, 67 DLR (4th) 321 ______________________________________ 17

CONSTITUTIONAL PROVISIONS

Constitution of India Art 19(6). ______________________________________________ 23

Constitution of India Art, 26. ________________________________________________ 24

Constitution of India Art. 19(1)(d) ____________________________________________ 23

Constitution of India Art. 19(1)(g). ___________________________________________ 23

Constitution of India Art. 19(5) ______________________________________________ 23

Constitution of India Art. 25 ________________________________________________ 24

Constitution of India, Art. 14. ________________________________________________ 5

Constitution of India, Art. 21. ________________________________________________ 5

Constitution of India, Art. 245. _______________________________________________ 4

Constitution of India, Art. 246. _______________________________________________ 4

Constitution of India, Art. 32. ________________________________________________ 1

Constitution of India, Schedule VII, List 2, Entry 6. _______________________________ 4

ENGLISH CASE LAW

R v North & East Devon Health Auth., Ex p Coughlan, (2000) 2 WLR 622 ____________ 14

re MB Medical Treatment, (1997) 2 FLR 426.___________________________________ 17

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BOOKS AND COMMENTARIES

Arvind P. Datar, Commentary On The Constitution Of India (2nd ed. 2007). ___________ 2

Dr. B. L. Wadehra, PIL (2nd edn, 2009) 47. _____________________________________ 2

Durga Das Basu, Shorter Constitution Of India (14th ed. 2009). _____________________ 20

Francis Bennion, Bennion on Stautory Interpretation (Version 24, Vol 14, 2010) 442. ____ 25

H.M. Seervai, Constitutional Law Of India (4th ed. 2010)___________________________ 7

Henry Campbell Black, Black's Law Dictionary (4th edn 1971,). ____________________ 25

John S. James, Stroud’s Judicial Dictionary, (4th edn, )_____________________________ 2

L. M. Singhvi, Constitution of India (3rd edn., 2013) 565 ___________________________ 2

P. Ramanatha Aiyar, The Major Law Lexicon (4th edn., 2010) 4041. __________________ 1

Stroud’s Judicial Dictionary (3rd edn., 2008) 2204.________________________________ 2

V. G. Ramchandran, Law of Writs (6th edn., Eastern Book Co, 2006) 26. ______________ 1

V. N. Shukla, Constitution of India (12th edn., 2016) 345. __________________________ 1

UNITED STATES CASE LAW

Connally v General Constr Co, 269 U.S. 385 ____________________________________ 12

Cruzan v Director, Missouri Department of Health, 497 U.S. 261 ___________________ 17

Grayned v City of Rockford, 408 U.S. 104. _____________________________________ 12

Roman Catholic Diocese of Brooklyn, New York v Cuomo, 592 U.S., 141 S. Ct. 63. _____ 16

ACADEMIC PAPERS

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MEMORANDUM for PETITIONER INDEX OF AUTHORITIES

‘VAERS Table of Reportable Events Following Vaccination” (21 March 2017)

<https://vaers.hhs.gov/docs/VAERS_Table_of_Reportable_Events_Following_Vaccination.p
df> accessed 7 June 2021 ___________________________________________________ 18

Aparna Chandra, ‘Proportionality in India: A Bridge to Nowhere?’ (2020) 3(2) University of

Oxford HRHJ <https://ohrh.law.ox.ac.uk/wordpress/wp-content/uploads/2020/05/U-of-
OxHRH-J-Proportionality-in-India.pdf> accessed 12 June 2021. _____________________ 6

Chandrakant Lahariya, ‘A brief history of vaccines & vaccination in India’ (Indian J Med Res,
April 2014) <https://vaccine.icmr.org.in/images/pdf/ijmr_reference.pdf > accessed 13 June
2021. __________________________________________________________________ 25

D Mechanic, ‘The functions and limitations of trust in the provision of medical care’ (Journal
of Health Politics Policy and Law, September 1998)
<https://pubmed.ncbi.nlm.nih.gov/9718518/> accessed 8 June 2021. __________________ 6

David Bilchitz, ‘Necessity and Proportionality: Towards a Balanced Approach?’ (SSRN,

August 17 2012) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2320437> accessed 11
June 2021. _______________________________________________________________ 6

Gov. U.K, ‘Vaccine Damage Payment’ <https://www.gov.uk/vaccine-damage-payment/how-

to-claim> accessed 15 June 2021. _____________________________________________ 8

Health Resource and Service Adm’r ‘What You Need to Know About the National Vaccine
Injury Compensation Program (VICP)’ (September 2016)
<https://www.hrsa.gov/sites/default/files/vaccinecompensation/resources/84521booklet.pdf>
accessed 12 June 2021. _____________________________________________________ 9

Katherine M Cook and Ors, ‘The National Vaccine Injury Compensation Program’ (Pediatrics,
18 April 2011) <https://europepmc.org/article/med/21502255> accessed 12 June 2021.____ 9

Kathleen Stratton & Ors, Adverse Effects of Vaccines: Evidence and Causality (The National
Academies Press, 2012). ___________________________________________________ 18

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MEMORANDUM for PETITIONER INDEX OF AUTHORITIES

Kruthika R, ‘Public Health & Federalism’ (Constitution Of India, 24 April 2020)

<https://www.constitutionofindia.net/blogs/public_health_and_federalism> accessed 8 June
2021. ___________________________________________________________________ 4

Neisha Sundaram and ors, ‘Community awareness, use and preference for pandemic influenza
vaccines in Pune, India’ (Human Vaccines & Immunotherapeutics, June 2015)
<https://pubmed.ncbi.nlm.nih.gov/26110454/> accessed 7 June 2021. _________________ 6

Robyn Correl, ‘What is the Vaccine Court’ (Verywellhealth, 3 May 2021)

<https://www.verywellhealth.com/what-is-the-vaccine-court-and-how-does-it-work-
4769126#citation-12>. ______________________________________________________ 9

Rudrajit Paul, ‘Epidemic Act of India’ (J Indian Medical Ass’n, Vol 118, September 2020).
_______________________________________________________________________ 25

United States Court of Federal Claims, Vaccine Claims/Office of Special Masters. _______ 9

World Health Organisation, ‘COVID-19 and mandatory vaccination: Ethical considerations

and caveats’ (13 April 2021) <https://www.who.int/publications/i/item/WHO-2019-nCoV-
Policy-brief-Mandatory-vaccination-2021.1> accessed 12 June 2021._________________ 22

World Health Organisation, ‘Ten threats to global health in 2019’ <https://www.who.int/news-

room/spotlight/ten-threats-to-global-health-in-2019> accessed 12 June 2021.____________ 5

Elizabeth Boulden, ‘The Vaccine Damage Payments Act 1979 and the coronavirus (COVID-

19) vaccine’ (Clinical Law Negligence, 30 Dec 2020)

<https://clinicalnegligence.blog/2020/12/30/the-vaccine-damage-payments-act-1979-and-the-

coronavirus-covid-19-vaccine/> accessed 10 June 2021. __________________________8

World Health Organization, ‘Vaccine Safety Basics Learning Manual’ (2013) Module 2
<https://www.who.int/vaccine_safety/initiative/tech_support/Vaccine-safety-E-course-
manual.pdf> accessed 7 June 2021 ___________________________________________ 18

1st NLUO PHFI Public Health Law National Moot Court Competition XV
MEMORANDUM for PETITIONER INDEX OF ABBREVIATIONS

INDEX OF ABBREVIATIONS

ABBREVIATION EXPANSION

¶ Paragraph
& and
A.I.R All India Reporter
A.P. Andhra Pradesh
All E.R. All England Report
Adm’r Administrator
Anr. Another
Art. Article

Ass’n Association
Auth. Authority
Bom. Bombay

Cal. Calcutta
Co. Company
Constr. Construction
Corpn. Corporation
Dec. December
Del. Delhi
Edn. Edition

Educ. Education
EA, 1897 Epidemic Act, 1987
EAA, 2021 Epidemic (Amendment) Act, 2021
Found’n Foundation
FFA Freedom For All
Gov. Government
Guj. Gujarat
H.C. High Court

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MEMORANDUM for PETITIONER INDEX OF ABBREVIATIONS

H.P. Himachal Pradesh

Hon’ble Honourable

Ibid Ibidem
Int’l International
IPC Indian Penal Code
J&K Jammu and Kashmir
Kar. Karnataka

Ltd. Limited
M.P. Madhya Pradesh
Mar March
n Supra
NGO Non-Governmental Organisation

No. Number
Ors. Others
PIL Pubic Interest Litigation
Pvt. Private
Raj. Rajasthan
s. Section

S.C. Supreme Court

S.C.C. Supreme Court Cases
S.C.R. Supreme Court Reporter
UK United Kingdom
US United States
v. Versus

w.r.t. With Reference to

1st NLUO PHFI Public Health Law National Moot Court Competition XVII
MEMORANDUM for PETITIONER STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The Hon’ble Supreme Court has jurisdiction to hear this case under Article 32 of the
Constitution of Diana which reads as follows:

“32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and
(2), Parliament may by law empower any other court to exercise within the local limits
of its jurisdiction all or any of the powers exercisable by the Supreme Court under
clause (2)

(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution”

The present memorandum sets forth the facts, contentions and arguments in the instant case.

1st NLUO PHFI Public Health Law National Moot Court Competition XVIII
MEMORANDUM for PETITIONER STATEMENT OF FACTS

STATEMENT OF FACTS

BACKGROUND
1. “Union of Diana” (‘Diana’), a democratic republic country in South Asia with 130 crore
people, is the world’s second most populous country. The Constitution of Diana safeguards the
interest of each of its ethnically and religiously diverse groups as it aims to treat everyone at
parity and promote fraternity among all.
2. A pandemic broke out in January 2020 because of the contagious virus called DARSCoV-2
or Doronavirus, referred to as DOVID-19 in humans. The first case of Dovid-19 was reported
in a country called Mandaria, a country that shares its borders with Diana. It quickly spread all
across the globe.
3. Diana witnessed a rapid increase of Dovid-19 cases, which swiftly spread within its States
causing varied but often serious symptoms, especially in people at risk such as the elderly and
the immunosupressed. The scientific community suggested the development of a new vaccine
to combat the spread of DOVID-19. However, as is the case with vaccines globally, there is an
inevitable risk of serious adverse events such as seizures and allergic reactions, possibly
leading to death.
INITIATION OF VACCINATION PROCESS
4. Diana, being one of the five largest producers of pharmaceuticals in the world by volume,
held a pre-eminent place in the race to manufacture vaccines. In order to meet the urgent
domestic and global requirements, Diana relaxed the regulatory approval process for vaccines
to foster development and distribution of the Dovid-19 vaccine at the earliest.
5. On 10th January 2021, the vaccination process started in Diana at select centres all over the
country. The vaccination process was managed by the Central Gov. which procured doses of
Hivovi from Myhealth Pvt Co Ltd. However, the vaccination was available for citizens only
above the age of 45 years.
6. During its first phase, one individual – Mr X – who was given a dose of the Hivovi vaccine
on 26th January, 2021 developed serious side effects immediately thereafter including nausea,
fever and headaches. He was hospitalised for 15 days and lost his memory partially. Thereafter,
on 18th February, 2021 he sued the vaccine manufacturer, Myhealth Pvt. Co. Ltd. for
compensation of one crore rupees in the civil court of Diana.
7. Despite growing concerns regarding the side effects, vaccines of other private manufacturers
were subsequently approved for emergency use in Diana in the following months. By 1st
March 2021, the Central Gov. of Diana had entered into contractual obligations with various

1st NLUO PHFI Public Health Law National Moot Court Competition XIX
MEMORANDUM for PETITIONER STATEMENT OF FACTS

private manufacturers for the procurement of sufficient vaccines so as to vaccinate its entire
adult population by November 26, 2021, with the vaccines being available for free.
AMENDMENT MADE TO THE EA, 1987
8. Vaccine manufacturers threatened to stop production of vaccines unless the Central Gov. of
Diana granted them immunity from prosecution against any adverse consequences of the
vaccination. The Central Gov. of Diana was of the view that it was essential to protect vaccine
manufacturers from frivolous claims. Subsequently, on 5th March 2021, the Central Gov.
amended the EA, 1987 to grant immunity to the vaccine manufactures and provide
compensation to any individual who has suffered loss because of the vaccination.
9. In March 2021 a more severe second wave of the pandemic struck Diana and there was a
sudden surge of Dovid-19 cases in different States. New variants of Dovid-19 virus were
suggested as one of the reasons for the same. In order to limit the second wave of cases, on
15th March 2021, the Central Gov. of Diana allowed vaccination of all citizens above 18.
REGULATION ISSUED BY THE STATE OF ARIANA
10. Diana witnessed a low turnout for vaccinations despite it being available to all adults.
Ariana, a State in the Union of Diana, recorded a constant surge of Dovid-19 cases the first
quarter of 2021, including higher deaths. On 30th March 2021, the Chief Minister of Ariana,
in a press conference, stated that herd immunity through vaccination was the only way to curb
the pandemic in Ariana and that his Gov. will ensure that the state’s population is vaccinated
at the earliest. Thereafter, on 03rd April 2021, the Gov. of Ariana issued a regulation under the
EA, 1987 making vaccination mandatory for performing major activities such as movement
and trade.
PIL FILED BEFORE THE HON’BLE SUPREME COURT
11. The aforesaid restrictions imposed by the Central Gov. of Diana and State of Ariana
resulted in huge public criticism. Following the new regulations issued by the Centre and the
State of Ariana, an NGO, “Freedom for All” filed a writ petition before the Supreme Court of
Diana challenging the same. The Central Gov. of Diana and State of Ariana inter alia submitted
that they undertook these measures to improve public health and protect the fundamental right
to life and health of the people of Diana.

1st NLUO PHFI Public Health Law National Moot Court Competition XX
MEMORANDUM for PETITIONER ISSUES RAISED

ISSUES RAISED

The following issues have been placed before the Hon’ble Supreme Court to adjudicate upon:

~ ISSUE (1) ~

Whether the writ petition filed by Freedom for All under Article 32 of the Constitution
of Diana is maintainable?

~ ISSUE (2) ~

Whether the Epidemic (Amendment) Act, 2021 is violative of Part III of the
Constitution of Diana?

~ ISSUE (3) ~

Whether the regulation issued by the State of Ariana is unconstitutional and ultra vires
to the Epidemic Act, 1987?

1st NLUO PHFI Public Health Law National Moot Court Competition XXI
MEMORANDUM for PETITIONER SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

~ ISSUE (1) ~

The writ petition filed by Freedom for All under Article 32 of the Constitution of Diana
is maintainable.
It is humbly submitted that the writ petition by way of PIL filed by the NGO Freedom for All
under Article 32 is maintainable as the petitioner has the requisite locus standi. This is because
it has been filed by a social action group with a bona fide intention without any private or
oblique motive. It is further submitted that the petitioner has filed the writ petition out of a
genuine concern representing the public interest of the majority, especially the weaker sections
of society. It is also submitted that simply the existence of a possible alternate remedy does not
qualify as a bar to approaching the Hon’ble Supreme Court under Article 32 of the Constitution.

~ ISSUE (2) ~

The Epidemic (Amendment) Act, 2021 is violative of Part III of the Constitution of Diana.
It is humbly submitted that the Epidemic (Amendment) Act, 2021 is violative of Part III of the
Constitution of Diana as it fails the test of proportionality under Articles 14 and 21. The
legislation is not sanctioned by law and does not have a rational nexus to the objective sought
to be achieved. Further, there are other equally effective less-restrictive measures available.
There are also no procedural safeguards in the law. It is further submitted that the legislation
is vague and also creates unreasonable classifications. Lastly, it is submitted that the legislation
violates the doctrine of legitimate expectation and suffers from the vice of excessive delegation
of powers.

~ ISSUE (3) ~

The regulation issued by the State of Ariana is unconstitutional and ultra vires to the
Epidemic Act, 1987.
It is humbly submitted that the regulation issued by the State of Ariana is unconstitutional and
ultra vires to the EA, 1987 as it violates the right to life under Article 21, including the right to
health and to refuse medical treatment, the right to informed consent and the right to privacy.
It also violates Article 14 as it is arbitrary and excessive, failing the test of proportionality while

1st NLUO PHFI Public Health Law National Moot Court Competition XXII
MEMORANDUM for PETITIONER XXIII SUMMARY of ARGUMENTS

also creating unreasonable classifications. It is further submitted that the restrictions imposed
on the rights to movement and trade under Article 19 are unreasonable and not rational.
Moreover, the right to freedom of conscience and religion is also potentially violated. Lastly,
the regulation is ultra vires to the EA, 1897 as it uses a temporary power to impose a regulation
which has a permanent effect. Moreover, the regulation is indefinite with no end-date, and has
been enacted using powers outside the scope of the EA, 1897.

1st NLUO PHFI Public Health Law National Moot Court Competition XXIII
MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

ARGUMENTS ADVANCED

ISSUE (1): THE WRIT PETITION FILED BY FREEDOM FOR ALL UNDER ART. 32 OF THE
CONSTITUTION OF DIANA IS MAINTAINABLE

(¶ 1.) It is humbly submitted before the Apex Court that the present Writ Petition filed as a
PIL, is maintainable under Art. 32 1 because firstly, the Petitioner has the requisite locus standi
and interest in the present case [A]; secondly, the petition concerns a matter of public interest
[B]; and lastly, an alternate remedy is not a bar under Art. 32 [C].

A. THE PETITIONER HAS REQUISITE LOCUS STANDI

(¶ 2.) The term locus standi means the right to bring an action,2 to be heard in court or to
address the court on a matter. 3 It can also be understood to imply legal capacity to challenge
legislation, an order or a decision.4 Any member of public or a public-spirited organization 5
having a bona fide 6 and sufficient public interest will possess the necessary locus standi.
Further, the Hon’ble SC has explicitly held that social action groups have a locus standi to file
a PIL in the interest of the public.7
(¶ 3.) The court has also held that a writ petition filed Art. 32 for violation of fundamental
rights is maintainable, as the traditional locus standi has been enlarged.8 This has provided
justice the disenfranchised, while access to justice to whom legal injury has been caused has
now been jettisoned.9 Lastly, a PIL cannot be filed for personal gain/profit or political
motives 10 or to gain cheap popularity.11
(¶ 4.) In the present case, an NGO based in Diana called Freedom for All, which is a social
action group acting in the interst of the public, has filed a writ petition to challenge the EAA,
2021 and regulation passed by the State of Ariana. 12 The petition has been filed considering

1
Constitution of India, Art. 32.
2
P. Ramanatha Aiyar, The Major Law Lexicon (4th edn., 2010) 4041.
3
S. P. Gupta v Union of India, AIR 1982 SC 149.
4
V. G. Ramchandran, Law of Writs (6th edn., Eastern Book Co, 2006) 26.
5
Janta Dal v H. S. Chowdhary, (1992) 4 SCC 305; Bandhua Mukti Morcha v Union of India, (1984) 3
SCC 16; V. N. Shukla, Constitution of India (12th edn., 2016) 345.
6
Fertilizer Corpn Kamgar v Union of India, AIR 1981 SC 844; Foreward Constr Co v Prabhat Mandal, (1986)
1 SCC 100; Raunaq Int’l Ltd v I.V.R. Constr Ltd, (1999) 1 SCC 492.
7
State Of Himachal Pradesh v A Parent Of A Student Of Medical College Simla & Ors (1985) SCR (3) 676.
8
D. C. Wadhwa v State of Bihar, (1987) 1 SCC 378.
9
People's Union for Democratic Rights v Union of India, (1982) 3 SCC 235.
10
S. K. Kantha v Oamarulla Islam, (2005) 11 SCC 507; Del Municipal Workers Union v Del
Municipal Corpn, AIR 2001 Del 68.
11
Gurpal Singh v State of Punjab, (2005) 5 SCC 136.
12
Moot proposition ¶16.

1st NLUO PHFI Public Health Law National Moot Court Competition 1
MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

the adverse effects of these legislative acts on the fundamental rights of the citizens of Diana.
Additionally, the petition has been filed with a bona fide intention, since no personal or political
benefit is being apprised through it. Therefore, the Petitioner has the requisite locus standi.

B. THE PETITIONER CONCERNS A MATTER OF PUBLIC INTEREST

(¶ 5.) A PIL serves to enable litigation that is in the interest of the public 13, which includes
public security, order,14 and health.15 It includes instances where legal rights and liabilities of
the public at large, social or economic justice16 are affected. 17 PILs are especially for those
belonging to the weaker sections of society, 18 who may be too poor, illiterate, disadvantaged
or unaware to be able to enforce their rights. 19
(¶ 6.) In the present case, the EAA, 2021 affects the right to access to justice and through an
arbitrary compensation limit, would cause economic exploitation of the public. There exist
legitemate concerns of violations of Arts. 14, 19 and 21, especially when there is a threat to the
health of individuals who may not be able to approach the Court themselves, such as members
of weaker sections. Lastly, there has been public criticism of the legislation,20 clearly depicting
that it is a matter of public importance.
C. THE EXISTENCE OF AN ALTERNATE REMEDY IS NOT A BAR UNDER ART. 32

(¶ 7.) Approaching the SC for protection of fundamental rights is enshrined under Art. 32 21
and this power, is a fundamental right as well.22 Even if the HC can be approached, it is not
necessary as the right to approach the SC exists nevertheless.23
(¶ 8.) Additionally, the EAA, 2021 affects the rights of citizens all across the nation and as
such, the SC is the appropriate auth. to approach to check its validity. If any party is deterred
from approaching the SC via Art. 32, it would amount to a serious interference in the
administration of justice. 24

13
L. M. Singhvi, Constitution of India (3rd edn., 2013) 565; Stroud’s Judicial Dictionary (3rd edn., 2008) 2204.
14
Emperor v Jeshinbhai Ishwarlal Dhobi, AIR 1950 Bom 363.
15
Municipal Corpn. of the City of Ahmedabad v Jan Mohd. Usmanbhai, (1986) 3 SCC 20.
16
Bandhua Mukti Morcha (n 5).
17
John S. James, Stroud’s Judicial Dictionary, (4th edn, ), Janata Dal v. H.S. Chowdhary & Ors, (1992) 4 SCC
305.
18
People's Union for Democratic Rights (n 9).
19
Dr. B. L. Wadehra, PIL (2nd edn, 2009) 47.
20
Moot Proposition ¶16.
21
Constitution of India, Art. 32.
22
Mohini v State of Karnataka, (1992) 3 SCC 666; Arvind P. Datar, Commentary On The Constitution Of India
(2nd ed. 2007).
23
Romesh Thapar v State of Madras, AIR 1950 SC 124; K. K. Kouchunni v State of Madras, AIR 1959 SC 725.
24
Arnab Ranjan Goswami v The Maharashtra State Legislative Assembly & Ors. (2020) SCC OnLine SC 1100

1st NLUO PHFI Public Health Law National Moot Court Competition 2
MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

(¶ 9.) It is submitted that the regulation imposed by the State of Ariana contains a substantial
question of law,25 which is one that must be debatable, not previously settled, and have a
material bearing on the rights of the parties.26 The regulation calls for mandatory vaccinations
of a state and if implemented would severely affect rights of its residents and as such, the SC
as the “Sentinel on the Qui Vive 27” has been approached.

ISSUE (2): THE EAA, 2021 IS VIOLATIVE OF PART III OF THE CONSTITUTION OF DIANA

(¶ 10.) It is humbly submitted before the Apex Court that the EAA, 2021 issued by the
Ministry of Law and Justice of the Union of Diana (hereinafter referred to as “the EAA, 2021”)
is violative of Part III of the Constitution of Diana. Therefore, the EAA, 2021, must be declared
as such because, firstly, the EAA, 2021 fails to meet the requirements of the test of
proportionality [A]; secondly, the EAA, 2021 suffers from the vice of vagueness [B]; thirdly,
the EAA, 2021 imposes an unreasonable classification [C]; fourthly, the EAA 2021 violates
the doctrine of legitimate expectation [D]; and lastly, the EAA 2021 represents an excessive
delegation of power [E].

A. THE EAA, 2021 FAILS TO MEET THE REQUIREMENTS OF THE TEST OF

PROPORTIONALITY

(¶ 11.) The doctrine of proportionality, constitutes the dominant best practice judicial standard
for resolving disputes that involve a conflict between a right and a legitimate Gov. interest. 28
Whether impugned provisions of a statute amount to reasonable restrictions and have been
brought out in the interest of the public require the exercise of balancing fundamental right on
one hand and the restrictions imposed on the other.29
(¶ 12.) This test has been implemented in a catena of judgements to check attribution of relative
importance to factors 30 and has been adopted by the Indian judiciary from a verdict issued by
the Canadian SC in R v. Oakes. 31
(¶ 13.) The doctrine of proportionality is a four-pronged judicially entrenched principle which
requires that, firstly, the legislative action be sanctioned by law [1]; secondly the action must
have a rational connection to a legitemate aim [3]; thirdly, there exist no equally effective, less

25
M. Janardhan Rao v Joint Commissioner of Income Tax, (2005) 2 SCC 324.
26
Nazir Mohamed v J. Kamala & Ors, (2020) SCC OnLine SC 676.
27
Anil Dey vs State Of West Bengal, (974) 4 SCC 514
28
Justice K. S. Puttaswamy (Retd) v Union of India, (2019) 1 SCC 1.
29
Modern Dental College & Research Centre & Ors v State of M.P. & Ors, (2012) 4 SCC 707.
30
Maharashtra Land Development Corpn. & Ors v State of Maharashtra & Anr, (2011) 15 SCC 616.
31
Her Majesty the Queen v David Edwin Oakes, [1986] 1 S.C.R. 103.

1st NLUO PHFI Public Health Law National Moot Court Competition 3
MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

restrictive alternative [4]; and lastly, have procedural guarantees against abuse of interference
[5]. 32

1. THE ACTION IS NOT SANCTIONED BY LAW

(¶ 14.) The pre-requisite of a law-based sanction for an action, is a corollary to Art. 21 and
assumes a positivistic view in that it is upon the State to take steps for ensuring an individual
of his life and dignity. 33 Such steps are in the form of actions calling for, improvement of public
health,34 elimination of water and air pollution 35 and communication.36
(¶ 15.) It is submitted that, the EAA, 2021 does not fall under the ambit of powers provided to
the Parliament by Art. 245 37 and Art. 246 38 of the Constitution. Art. 245 vests within the
Parliament power to make laws for the whole or any part of the territory of the State, whereas
Art. 246 39 calls for division of powers between the Parliament and State Legislatures.
(¶ 16.) In the present case, the Gov. has claimed that the EAA, 2021 is to improve and protect
public health.40 However, as per the division of powers provided for under Art. 246, public
health is an item under the State List 41 and as such, the Parliament has no authority.
(¶ 17.) Additionally, as per the Constituent Assembly debates, a proposal to shift public health
to the Concurrent or Union List was put forth, but denied so as to encourage decentralization.42
As such, the sententia legis43 for exclusion of the Centre from public health legislation is clear
and the same must be respected.

2. THE LEGISLATIVE ACTION DOES NOT HAVE A RATIONAL CONNECTION TO A LEGITEMATE

AIM NECESSARY IN A DEMOCRATIC SOCIETY

(¶ 18.) The legislative action must have a legitemate aim according to the doctrine of
proportionality 44. According to the Central Gov., the legitemate aim of the EAA, 2021 is to
maintain and improve public health45.

32
Justice K.S. Puttaswamy (Retd) v Union of India, (2019) 1 SCC 1.
33
Justice K.S. Puttaswamy (Retd) (n 32).
34
Vincent Panikurlangara v Union of India & Ors, (1987) 2 SCC 165.
35
M. C. Mehta v. Union of India & Ors, (1987) 1 SCC 395.
36
State of H.P. & Anr vs Umed Ram Sharma & Ors, (1987) 1 SCC 602.
37
Constitution of India, Art. 245.
38
Constitution of India, Art. 246.
39
Constitution of India, Art. 246.
40
Moot proposition ¶16.
41
Constitution of India, Schedule VII, List 2, Entry 6.
42
Kruthika R, ‘Public Health & Federalism’ (Constitution Of India, 24 April 2020)
<https://www.constitutionofindia.net/blogs/public_health_and_federalism> accessed 8 June 2021.
43
Sententia Legis, Intent of the legislature.
44
Justice K.S. Puttaswamy (Retd) (n 32).
45
Moot proposition ¶16.

1st NLUO PHFI Public Health Law National Moot Court Competition 4
MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

(¶ 19.) This limb of proportionality is encompasses Art. 1446 and Art. 21. 47 The chief aspect
of this limb is ensuring a rational nexus between the objective and the means adopted to achieve
it. 48 When a restriction is tested on the anvil of reasonableness and rationality, the underlying
purpose of the restrictions and prevailing conditions must be considered.49 The underlying
purpose of these restrictions on prosecution, is improvement of public health, 50
(¶ 20.) It is submitted that, the EAA, 2021 means adopted does not possess a rational nexus to
the aim of preserving public health. The EAA, 2021 has failed in its inherent objective of
improving public health through mass vaccinations, as it has had the effect of dissuading the
public from taking the vaccine. A vaccination drive is a two-step process of procurement of
vaccines for the public and taking of the vaccination shot by the public. However, it is
submitted that the EAA, 2021, by providing immunity to vaccine makers and no form of
redressal for victims of side effects, has discouraged the public from taking the vaccine.
(¶ 21.) The means adopted are unreasonable and irrational. In the current case, the Parliament
enacted the EAA, 2021 to grant immunity to vaccine manufacturers from prosecution against
adverse effects of the vaccination.51 However, on one hand, regulatory approval process for
the vaccines has been relaxed 52 and the vaccine has been approved for emergency use, while
on the other hand immunity is being given to the vaccine manufacturers.53 The EAA, 2021 led
to huge public criticism due to such unreasonable action.54
(¶ 22.) Further, the prevailing conditions were not accounted for. In the present prevailing
conditions, a population is struggling against a new virus, 55 and is hesitant to take the vaccines
due to media reports of side effects 56 and a fast-tracked and relaxed regulatory process. 57
Additionally, no FAQs or potential side effects of the vaccine have been released and yet,
immunity has been provided to the vaccine manufacturers58. Therefore, a climate of vaccine
hesitancy59 has been created despite the availability of vaccines.

46
Constitution of India, Art. 14.
47
Constitution of India, Art. 21.
48
Justice K.S. Puttaswamy (Retd) (n 32); Modern Dental College & Research Centre (n 29).
49
State of Madras v V.G. Row, Union of India & State of Travancore-Cochin, 1952 AIR SC 196.
50
Moot proposition ¶16.
51
Moot proposition ¶12.
52
Moot proposition ¶7.
53
Moot proposition ¶10.
54
Moot proposition ¶16.
55
Moot proposition ¶2.
56
Moot Proposition ¶9.
57
Moot Proposition ¶7.
58
Clarification to the Moot Proposition ¶21.
59
World Health Organisation, ‘Ten threats to global health in 2019’ <https://www.who.int/news-
room/spotlight/ten-threats-to-global-health-in-2019> accessed 12 June 2021.

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

(¶ 23.) Studies have identified that media influence and lack of information about vaccines are
major criteria in determining whether people will take vaccines or not.60 Additionally, a
Found’n of confidence in health care professionals and the Gov. is essential for vaccine
acceptance.61 The EAA, 2021 destroys any confidence in the Gov. This is clearly depicted
through the facts, since there is no shortage of vaccines,62 the vaccines are available for free 63
and the registration process has been simplified, 64 but yet the public is not turning up to take
the vaccine.65 In fact, one state went to the extent of making the vaccination mandatory to get
the public to take it. 66
(¶ 24.) Therefore, by providing immunity to vaccine manufacturers, the public is even more
hesitant to take vaccines. Hence, no rational nexus can be drawn between restrictions imposed
and the objective sought and thus, the EAA, 2021 fails to meet the requirements of
proportionality.

3. THERE IS AN EQUALLY EFFECTIVE, LESS RESTRICTIVE ALTERNATIVE AVAILABLE

(¶ 25.) The above requirement does not secure proportionality by itself. 67 The test of
proportionality also mandates that no equally effective, but less restrictive alternative is
available.68 Int’l courts have regarded it necessary, that the legislator choose a remedy which
is equally effective, but infringes on fundamental rights to a lesser extent, if available. 69
Additionally, the alternative’s efficacy must be measured on its ability to achieve the objective
in a real and substantial manner.70
(¶ 26.) The exercise of examining alternative remedies is applied so that no right is restricted
to a greater extent than necessary to fulfil the legitimate interest of the countervailing interest

60
Neisha Sundaram and ors, ‘Community awareness, use and preference for pandemic influenza vaccines in Pune,
India’ (Human Vaccines & Immunotherapeutics, June 2015) <https://pubmed.ncbi.nlm.nih.gov/26110454/>
accessed 7 June 2021.
61
D Mechanic, ‘The functions and limitations of trust in the provision of medical care’ (Journal of Health Politics
Policy and Law, September 1998) <https://pubmed.ncbi.nlm.nih.gov/9718518/> accessed 8 June 2021.
62
Clarifications to the Moot Proposition, ¶5.
63
Moot proposition ¶10.
64
Clarifications to the Moot Proposition, ¶5.
65
Moot proposition ¶15.
66
Moot proposition ¶15.
67
Aparna Chandra, ‘Proportionality in India: A Bridge to Nowhere?’ (2020) 3(2) University of Oxford HRHJ
<https://ohrh.law.ox.ac.uk/wordpress/wp-content/uploads/2020/05/U-of-OxHRH-J-Proportionality-in-
India.pdf> accessed 12 June 2021.
68
Justice K.S. Puttaswamy (Retd) (n 32).
69
Cannabis 9 March 1994, BVerfGE 90 (Federal Constitutional Court Germany).
70
David Bilchitz, ‘Necessity and Proportionality: Towards a Balanced Approach?’ (SSRN, August 17 2012)
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2320437> accessed 11 June 2021.

1st NLUO PHFI Public Health Law National Moot Court Competition 6
MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

in question.71 The legislature is provided with discretion to implement a remedy, but the
decision of whether the choice made infringes the rights excessively is left to the Court. 72
(¶ 27.) The Court must balance the restrictions against the right restricted taking into
consideration the nature of the infringed right, purpose and urgency for the restrictions,
disproportion of the imposition and prevailing conditions of the time.73 The duty of the Court
is ensuring a proper balance between adverse effects on rights of people and the purpose which
any legislation is intended to serve is maintained.74
(¶ 28.) It is submitted that, the Bilchitz model 75 which includes identifying alternatives to
measures adopted, seeing the efficacy of alternatives in achieving the objective in a ‘real and
substantial manner’, analysing the impact of each of these alternative measures on the infringed
right and undertaking a balancing test carried out by the Court, has been partially accepted by
the Apex Court.76
(¶ 29.) Further, a person’s access to justice is a guaranteed fundamental right under the
Constitution and denial of the same undermines public confidence in the justice system. 77 This
right is basic and inalienable and so no system of governance can deny the same to its citizens. 78
Additionally, a fundamental requirement under this right is the need for an adjudicatory
mechanism, which includes a Court, Tribunal, Commission or Auth., where a citizen can
agitate his grievance and seek adjudication of what he may perceive as a breach of his right by
another citizen or by the State or any one of its instrumentalities. 79
(¶ 30.) The right to access to justice is under both Art. 21 and Art. 14. Courts referenced past
inclusions under Art. 21 such as the right to legal aid, 80 right to a speedy trial81 and right to
compensation,82 to justify the inclusion of access to justice as a facet of Art. 21.83 Moreover, a
citizen’s inability to access adjudicatory mechanisms for determination of rights results in a
denial of Art. 14, reducing it to a mere teasing illusion.84 Lastly, this right in accordance with
the principles of natural justice, where all have a right to a fair hearing. 85
71
CPIO v Subhash Chandra Aggarwal, (2020) 5 SCC 481.
72
Canara Bank v V. K. Awasthy, (2005) 6 SCC 321.
73
State of Madras v V.G. Row (n 49).
74
Om Kumar & Ors v Union of India, (2001) 2 SCC 386.
75
David Bilchitz (n 70).
76
Justice K.S. Puttaswamy (Retd) (n 32).
77
Imtiyaz Ahmad v State of U. P. & Ors, (2011) 15 SCC 601; H.M. Seervai, Constitutional Law Of India (4th ed.
2010)
78
Anita Kushwaha v Pushap Sudan, (2016) 8 SCC 509.
79
Anita Kushwaha (n 78).
80
Khatri II v State of Bihar, (1981) 1 SCC 627.
81
Sheela Barse v Union of India, (1988) 4 SCC 226.
82
Rudul Shah v. State of Bihar, (1983) 4 SCC 141.
83
Anita Kushwaha (n 78).
84
Anita Kushwaha (n 78).
85
Audi Alteram Partem, Principle of Natural Justice.

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

(¶ 31.) In the present case, the EAA, 2021 provides immunity to vaccine manufacturers for the
purpose of protecting them from lawsuits for adverse effects and other frivolous matters. 86
Through Section 5(1), 87 the immunity is provided to developers and manufacturers notified by
the Central Gov. and through Section 5(2),88 the jurisdiction of civil courts, tribunals and
authorities has been limited so as to prevent them from being able to entertain any suits in
regard to the immunity provided.
(¶ 32.) The immunity from prosecution provided to the vaccine manufacturers puts an undue
restriction on the fundamental right to access to justice of an aggrieved party and as an
extension, imposes restrictions on Art. 14 and Art. 21.
(¶ 33.) It is submitted that equally effective, less restrictive alternatives that would not affect
the right to access to justice do exist. These include firstly, a redressal mechanism akin to that
of the U.K., secondly, the setting up vaccine courts akin to the U.S., and lastly, conversion of
the act into a temporary regulation.
(¶ 34.) The first less-restrctive alternative to the current remedy, is setting up of a state-funded,
no-fault compensation-based scheme that immunizes vaccine manufacturers from liability. 89
The U.K. has such a redressal mechanism through the Vaccine Damage Payments Act, 1979. 90
The Act provides for a one-off, tax-free compensation of 120,000 pounds, if a person is
severely disabled and the disability was caused by a vaccination.91 Additionally, a redressal
mechanism through a two- step process of mandatory reversal92 and appeals to a tribunal also
exists. 93 In both these steps, an opportunity to explain why the decision regarding
compensation is incorrect is given and a review of the decision occurs. An appeal before the
Social Security and Child Support Tribunal also exists, which is a body independent of the
Gov.94
(¶ 35.) It is submitted that such a redressal mechanism if implemented in Diana, would be one
where the right to access to justice would not be curtailed and the objective of protecting
vaccine makers from severe adverse effect- based lawsuits would also be maintained.95 Lastly,

86
Moot proposition ¶12.
87
EAA, 2021, s 5(1).
88
EAA, 2021, s 5(2).
89
Elizabeth Boulden, ‘The Vaccine Damage Payments Act 1979 and the coronavirus (COVID-19) vaccine’
(Clinical Law Negligence, 30 Dec 2020) <https://clinicalnegligence.blog/2020/12/30/the-vaccine-damage-
payments-act-1979-and-the-coronavirus-covid-19-vaccine/> accessed 10 June 2021.
90
Vaccine Damage Payments Act 1979.
91
Vaccine Damage Payments Act 1979, s 1, s 2.
92
Gov. U.K, ‘Vaccine Damage Payment’ <https://www.gov.uk/vaccine-damage-payment/how-to-claim>
accessed 15 June 2021.
93
Vaccine Damage Payments Act 1979, s 4.
94
Vaccine Damage Payment (n 92).
95
Moot proposition ¶12.

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

such a measure would have a long-term positive effect on public health as well, since it would
lead to a rise in confidence amongst the public to take the vaccine.
(¶ 36.) The second such alternative remedy is the setting up of vaccine courts. The United
States of America possesses vaccine courts that were created under the National Vaccine Injury
Compensation Programme, which allow those seeking compensation to appear before them. 96
These courts exist to fulfil a two-fold purpose of obtaining compensation and sheltering
vaccine-manufacturers from lawsuits that could potentially disincentivize production. 97
Additionally, these courts have been considered as a no-fault alternative to filing a lawsuit
against a vaccine manufacturer,98 as a result of which compensation is not paid by the co. In
the case of these courts as well, an appeal process is provided whereby if the special master,
who is a lawyer appointed by the court gives a verdict that the petitioner is not agreeable to,
the U.S. Court of Federals and then the U.S. Court of Appeals can be approached.99
(¶ 37.) It is also submitted that, the power of creation of additional courts has been provided to
the Parliament under Art. 247.100 Through this power, the Parliament has the auth. to establish
courts for the better administration of laws made by them. As such, it is clear that
implementation of such mechanism would do away with the undue restrictions on the right to
access to justice, while maintaining the objective of protecting vaccine manufacturers.
(¶ 38.) The last less-restrictive but equally alternative remedy would have been to issue a
temporary regulation under Section 2 of the EA, 1987 which provides for temporary measures.
The Gov. has currently amended the EA, 1987 to achieve its purpose.
(¶ 39.) However, since the main aim of the Gov. is to grant manufacturers immunity only till
DOVID-19 subsides, an amendment is an extremely excessive avenue for the same as the
amended section will continue to remain in the EA, 1987 even after DOVID-19 subsides. This
may be misused to grant immunity to other vaccine manufacturers later according to the whims
of the Legislature. Therefore, a temporary, time-bound regulation granting immunity would
have been more proportional and less restrictive.

96
Katherine M Cook and Ors, ‘The National Vaccine Injury Compensation Program’ (Pediatrics, 18 April 2011)
<https://europepmc.org/article/med/21502255> accessed 12 June 2021.
97
Robyn Correl, ‘What is the Vaccine Court’ (Verywellhealth, 3 May 2021)
<https://www.verywellhealth.com/what-is-the-vaccine-court-and-how-does-it-work-4769126#citation-12>.
98
United States Court of Federal Claims, Vaccine Claims/Office of Special Masters.
99
Health Resource and Service Adm’r ‘What You Need to Know About the National Vaccine Injury
Compensation Program (VICP)’ (September 2016)
<https://www.hrsa.gov/sites/default/files/vaccinecompensation/resources/84521booklet.pdf> accessed 12 June
2021.
100
Constitution of India, Art. 245.

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

4. THERE IS A LACK OF PROCEDURAL GUARANTEES AGAINST ABUSE OF INTERFERENCE

(¶ 40.) Procedural guarantees in legislation are to ensure that exercise of power remains fair
and reasonable.101 Any procedure created restricting the rights under Art. 21 must be fair, not
foolish, carefully designed to effectuate, not to subvert, the substantive right itself. 102 Such
procedures must rule out anything arbitrary or bizarre. 103 Procedural safeguards have been
regarded as indispensable to the essence of liberty.104 The wider the powers provided for are,
the more liberal the procedural safeguards.105
(¶ 41.) Manifest arbitrariness, which has been defined as, ‘something done by the legislature
capriciously, irrationally or without adequate determining principle’, is held as a valid reason
to invalidate legislation106 both plenary and subordinate.107 Lastly, the court has implied that
arbitrariness is antithetic to equality and such where an act is arbitrary it is implicit in that it is
unequal and therefore, violative of Art. 14.108
(¶ 42.) It is submitted that, the right to compensation has been recognized as a palliative for
the unlawful acts of instrumentalities which are in the name of public interest and which use
powers of the State as a shield. 109 Additionally, this right has developed through Art. 21, as
monetary compensation has been accepted as a valid remedy for the judiciary to implement, in
order to correct an infringement of fundamental rights. 110
(¶ 43.) A lack of uniformity and consistency in awarding compensation is of grave concern
and the non- provision of principles would leave the common man confused. The legislature
must fix the compensation on the basis of some principle or legislative policy, 111 which is not
illusory in nature. If such principles are not present, the computation of compensation will not
be upheld by the Courts as it would be tantamount to granting a charter of arbitrariness and
permitting a device to defeat Constitutional guarantees.112 Lastly, the principle of
compensation is based upon the maxim, ‘Restitutio in Integrum’ 113 which implies that

101
People's Union of Civil Liberties v Union of India Anr, (1997) 1 SCC 301; Union of India & Ors v P.
Balasubrahmanayam, 2021 SCC OnLine SC 169.
102
Maneka Gandhi v Union of India, (1978) 1 SCC 248.
103
People's Union of Civil Liberties (n 101).
104
Madhav Hayawadanrao Hoskot v State of Maharashtra, (1978) 3 SCC 544.
105
Ranjit Thakur v Union of India & Ors, (1987) 4 SCC 611.
106
Shayara Bano v Union of India, (2017) 9 SCC 1; Kumari Srilekha Vidyarthi v State of U. P., (1991) 1 SCC
212.
107
Indian Express Newspapers v Union of India, (1985) 1 SCC 641.
108
E. P. Royappa v State of Tamil Nadu, (1974) 4 SCC 3.
109
Rudul Sah (n 82).
110
Bhim Singh v State of J & K, (1985) 4 SCC 677.
111
Kesavananda Bharati v State of Kerala & Anr, (1973) 4 SCC 225.
112
State of Guj. v Shri Shantilal Mangaldas & Ors, (1969) 1 SCC 509.
113
V. Krishnakumar v State of Tamil Nadu & Ors, (2015) 9 SCC 388.

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compensation serves to restore the victim to the position he would have been in, had he not
sustained the wrong.
(¶ 44.) In the present case, the EAA, 2021 has provided no principles on the basis of which
compensation is being decided by the Central Gov in Section 6 of the Act and 114 is wholly
silent on any uniform parameters used to determine an amount for each case. 115
(¶ 45.) Further, the EAA, 2021 also imposes a limitation of 30 lakh rupees on the compensation
amount. However, no adequate determining principles have been provided on the basis of
which this limitation has been imposed. It has been held by the apex court that compensation
awarded must be reasonable and not arbitrary in nature. 116 In previous medical negligence
cases, compensation of 11 Crores has been imposed117 and therefore, the imposition of this
limitation without a determining principle, is nothing short of arbitrary, irrational and
capricious.118
(¶ 46.) The EAA, 2021, has also failed to prescribe a time limit in relation to the objective of
its enactment. The vaccination policy of the Central Gov. seeks to vaccinate its entire adult
population by November 26, 2021 119 and the rest of its citizens as soon as possible.120 As such,
the immunity given to vaccine makers should only last until manufacturing of vaccines is
ongoing. However, the EAA, 2021 fails to give any such time period. Similar legislation, such
as The Public Readiness and Emergency Preparedness Act used by the U.S. to provide
immunity to vaccine makers, also prescribes a time period of activity until 1st October, 2024.
(¶ 47.) Additionally, the EAA, 2021 states that vaccine manufacturers and developers as
notified by the Central Gov. would be immune.121 However, it fails to provide any reasons or
parameters that could be implemented in order to check if a manufacturer or developer should
be included under the notification. Both of these measures when taken in conjunction leaves
the door open to arbitrary action on the part of the Gov., as provision of immunity can be
provided to any manufacturer or developer, without regard to any determining principles in
perpetuity.

114
EAA, 2021, s 6.
115
Sarla Verma v Del Transport Corpn, (2009) 6 SCC 121.
116
Dilip S. Dahanukar v Kotak Mahindra Co Ltd & Anr, (2007) 6 SCC 528.
117
Balram Prasad v Kunal Saha, (2014) 1 SCC 384.
118
Sharma Transport v Gov, of A. P., (2002) 2 SCC 188.
119
Moot proposition ¶11.
120
Moot proposition ¶13.
121
EAA, 2021, s 5(1).

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

B. THE EAA, 2021 SUFFERS FROM VICE OF VAGUENESS

(¶ 48.) The wide import and usage of certain terms in such a manner that it is difficult to limit
their scope, attracts the vice of vagueness and arbitrariness.122 It has been held that invalidity
with respect to vagueness arises from the probability of misuse of the law to the detriment of
the individual. 123 This is especially present when the legislation fails to provide any objective
standard or form of norms or guidance.124 The vice of arbitrariness and as such Art. 14, is also
attracted if no demarcating line is conveyed through a certain provision. 125
(¶ 49.) The test applied to check for vagueness has been adopted from U.S. jurisprudence,
where it has been held that men of common intelligence must be able to decipher whether they
fall under a particular category or not. 126 Lastly, it has also been held that if arbitrary and
discriminatory enforcement is to be prevented, laws must provide explicit standards for those
who apply them.
(¶ 50.) A vague law impermissibly delegates basic policy matters to policemen, judges, and
juries for resolution on an ad hoc and subjective basis.127Further, a settled principle of
interpretation of statutes includes that the words used are to be understood in the light of that
particular statute and not in isolation. 128
(¶ 51.) In the present case, the EAA, 2021 seeks to differentiate between serious physical injury
that is caused by wilful misconduct of the vaccine manufacturer and injuries not caused as a
result of such misconduct. The basis for immunity has also been provided upon this parameter,
with the former instance inviting prosecution against the vaccine manufacturer, but the latter
providing them with immunity. 129 However, there has been no definition or explanation with
regard to the meaning of these terms provided. Additionally, the EAA, 2021 is silent on who
decides whether an injury would qualify under a ‘serious physical injury’ or what the
parameters to construe ‘wilful misconduct’ are.
(¶ 52.) This lack of any provision or principles would make it impossible for the common man
to categorize his injury and seek compensation from the Central Gov. Lastly, since no norms
or guidance has been provided, with regard to which auth. finally decides if an injury qualifies

122
Nisha Priya Bhatia v Union of India & Anr, (2020) 13 SCC 56; Kartar Singh v State of Punjab, (1994) 3 SCC
569.
123
K. A. Abbas v The Union of India & Anr, (1970) 2 SCC 780.
124
Harakchand Ratanchand Banthia & Ors. v Union of India & Ors, (1969) 2 SCC 166.
125
Shreya Singhal v Union of India, (2005) 5 SCC 1.
126
Connally v General Constr Co, 269 U.S. 385; State of M.P. v Baldeo Prasad, AIR 1961 SC 293.
127
Grayned v City of Rockford, 408 U.S. 104.
128
Nisha Priya Bhatia (n 122).
129
EAA, 2021, s 5(1).

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

or not, the provision is open-ended and would invite arbitrary and whimsical use on the part of
the Gov.

C. THE EAA IMPOSES AN UNREASONABLE CLASSIFICATION VIOLATING THE

CONDITIONS OF ART. 14

(¶ 53.) A principle of Art. 14 is that it does not forbid a reasonable classification for the
purposes of legislation. 130 However, the test of permissible classification has two pre-
requisites, firstly, that the classification must be founded on an intelligible differentia and
secondly, that the differentia must have a rational relation to the object sought to be achieved
by the statute in question.131
(¶ 54.) In the present case, the ultimate objective must be considered to show
reasonableness,132 which is public health. 133 The EAA, 2021 makes a classification between
Dovid-19 vaccine manufacturers and other medical item manufacturers. The differentia is
occupational, as providing immunity would encourage manufacturers to develop the vaccines
quicker and as such help public health,134 whereas manufacturers of other medical items did
not require such unfettered protection.
(¶ 55.) It is submitted that such a classification is unreasonable as several other medical
equipments are also essential for the preserving of public health and to curb the pandemic.
Therefore, sole immunity to vaccine manufacturers is an unreasonable classification with no
intelligible differentia.
(¶ 56.) Further, as shown the immunity while protecting vaccines manufacturers
disincentivizes taking the vaccine and so the population remains unvaccinated. Moreover, the
immunity to the vaccine manufacturers were given prior to the second wave of the pandemic
with new variants 135. The efficacy of the vaccines against the new variants is unknown, leading
to serious doubts about their benefit to public health. Therefore, the vaccines may hardly even
aid in public health in the present scenario. Therefore, public health is not benefitted by these
measures and the differentia employed has no rational relation to the object.

130
Chiranjit Lal Chowdhuri v The Union of India, AIR 1951 SC 41; The State of Bombay v F. N. Balsara, AIR
1951 SC 318; The State of West Bengal v Anwar Ali Sarkar, AIR 1952 SC 75.
131
Budhan Choudhry & Ors v The State of Bihar, AIR 1955 SC 191.
132
Chiranjit Lal Chowdhuri v The Union of India, AIR 1951 SC 41.
133
Moot Proposition ¶16.
134
Moot Proposition ¶1.
135
Moot Proposition ¶14

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

D. EAA 2021 VIOLATES THE DOCTRINE OF LEGITIMATE EXPECTATION

(¶ 57.) The doctrine of legitimate expectation is based on previous practice or past conduct, 136
unless some overriding public interest comes in the way. 137 The practice of legitimate
expectation comes into play when a public body leads an individual to believe that they will be
a recipient of a substantive benefit, which is then denied.138
(¶ 58.) It is submitted that, the while legitimate expectation of an individual may be overridden
for larger public benefit, such an action must be reasonable and fair.139 Additionally, where
denial of legitimate expectation is arbitrary and violative of natural justice, the court can
question the basis of the action.140 Lastly, in determining unreasonableness, the purpose,
conditions and extent of the evil must be considered.141
(¶ 59.) In the present case, Mr. X took a dose of the vaccine on 26th January, 2021 after which
he fell ill 142 and immunity which was applicable to pending proceedings143 was given to
vaccine manufacturers through an act on 5th March, 2021.144 The accepted practice, for any
deficiency145 in a medical product, is that the consumer 146 can sue for compensation. 147 This
includes deficiencies like side- effects, 148 especially if they are not communicated, as is the
case.149 Therefore, in the present case Mr. X, had a legitimate expectation to be able to sue the
vaccine manufacturers, at the time of taking the vaccine.
(¶ 60.) Additionally, even though the EAA, 2021 was made for greater public benefit, it has
been explained previously that there is no rational nexus between the restrictions and the
objective. As such, denial of Mr. X’s legitimate expectation is arbitrary and unreasonable
amounting to a violation of Art. 14.150

136
GNCT of Del v Naresh Kumar, 2010 SCC OnLine Del 3942.
137
Punjab Communications Ltd. v Union of India, (1999) 4 SCC 727.
138
R v North & East Devon Health Auth., Ex p Coughlan, (2000) 2 WLR 622; State of Jharkhand v Brahmputra
Metallics Ltd, 2020 SCC OnLine SC 968.
139
Monnet Ispat & Energy Ltd v Union of India, (2012) 11 SCC 1.
140
Union of India & Ors v Hindustan Development Corpn & Ors, (1993) 1 SCC 467.
141
Union of India & (n 141).
142
Moot Proposition ¶9.
143
EAA, 2021, s 5(3).
144
Moot Proposition ¶12.
145
The Consumer Protection Act 2019, s 2(11).
146
The Consumer Protection Act 2019, s 2(7).
147
The Consumer Protection Act 2019, s 2(34).
148
The Drugs and Cosmetics Rules 1945, s 6.2.
149
The Consumer Protection Act 2019, s 2(11)(ii).
150
Union of India v Lt. Col. P.K. Choudhary, (2016) 4 SCC 236.

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

E. EAA 2021 REPRESENTS AN EXCESSIVE DELEGATION OF POWER

(¶ 61.) The doctrine of separation of powers refers to functions of the parts of the Gov. as
enshrined under the Constitution.151 The duty of the legislature is to declare the policy of law
and fix legal principles which provide a standard to those empowered to execute the law. 152
Additionally, it has been held that the power of delegation with regard to legislative function
onto the executive cannot be done for a policy underlying a rule of conduct. 153
(¶ 62.) The nature of legislation is such that it must proceed on some principle after
consideration of diverse views while implementing policy.154 By declaring its policy in vague
or general terms or by not setting a standard of guidance, the legislature confers an arbitrary
power onto the executive.155 The Court has held that not laying down a legislative standard or
laying down a broad policy in general terms confers arbitrary powers to the executive and will
be an end to the rule of law.156
(¶ 63.) In the present case, the EAA, 2021 has no guiding principles regarding the computation
of compensation and the same has been left to the executive.157 Additionally, a cap of thirty
lakh rupees has been placed onto the compensation amount.158
(¶ 64.) The EAA, 2021 was meant to provide immunity for vaccine- manufacturers to focus
on development. This immunity should be required only up till the citizens of Diana are
vaccinated which was set to be by 26th November, 2021.159 However, no such expiry date has
been provided within the legislation
(¶ 65.) Therefore, there are several instances where the implementation of the legislation has
been left to the Executive arbitrarily. 160

151
Rai Sahib Ram Jawaya Kapur v State of Punjab, AIR 1955 SC 549.
152
In Re: Delhi Laws Act, 1912 (1951) AIR 332.
153
Jatindra nath v Province of Bihar, AIR 1949 FC 175.
154
Kesavananda Bharati n(111).
155
Vasantlal Maganbhai Sanjanwala v State of Bombay, AIR 1961 SC 4.
156
Vasantlal Maganbhai Sanjanwala (n 155).
157
EAA, 2021, s 6(1).
158
EAA, 2021, s 6(2).
159
Moot Proposition ¶12.
160
In Re: Delhi Laws Act, 1912 (n 152).

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

ISSUE (3): THE REGULATION ISSUED BY THE STATE OF ARIANA IS UNCONSTITUTIONAL AND
ULTRA VIRES TO THE EA, 1987

(¶ 66.) It is humbly submitted before the Apex Court that the regulation issued by the Public
Health Department of the Gov. of Ariana (hereinafter referred to as “the said regulation”) is
unconstitutional and ultra vires to the EA, 1987.
(¶ 67.) It is essential to note that even in a pandemic, every decision taken by an executive in
the name of public health and interest must be tested for constitutionality 161 on the anvils of
proportionality, arbitrariness, reasonableness and the right to life. 162
(¶ 68.) The said regulation must be declared as unconstitutional and ultra vires because, firstly,
the said regulation violates the Right to Life and Personal Liberty granted under Art. 21 of the
Constitution of Diana [A]; secondly, the said regulation is inherently arbitrary and does not
satisfy the conditions of Art. 14 of the Constitution of Diana [B]; thirdly, the said regulation
applies an unreasonable restriction on the Right to freedom of movement and Right to freedom
of trade under Art. 19 of the Constitution of Diana [C]; fourthly, the said regulation violates
the Right to freedom of religion as per Art. 25 of the Constitution of Diana [D]; and lastly, the
said regulation is ultra vires to the EA, 1987 as it falls outside the scope of the Act [E].

A. THE SAID REGULATION VIOLATES THE RIGHT TO LIFE AND PERSONAL LIBERTY
ENSHRINED IN ART. 21 OF THE CONSTITUTION OF DIANA

(¶ 69.) The Right to Life and Personal Liberty as provided in Art. 21 of the Constitution of
Diana is an extremely broad and far-reaching term that is intended to encompass a wide range
of rights that are instrumental for the enjoyment of a dignified and free life.163 The expansive
interpretation accorded covers a range of essential issues such as the right to a clean
environment164, shelter 165, livelihood 166 and trial 167 among numerous others.
(¶ 70.) The said regulation violates certain such rights that have been established under Art. 21
by the Hon’ble SC including firstly, the right to health and right to refuse medical treatment

161
Roman Catholic Diocese of Brooklyn, New York v Cuomo, 592 U.S., 141 S. Ct. 63.
162
Distribution of Essential Supplies & Services During Pandemic, Suo Motu Writ Petition (Civil) No. 3 of 2021,
2021 SCCOnline SC 411; Guj. Mazdoor Sabha v The State of Guj., (2020) 10 SCC 459.
163
Olga Tellis & Ors v Bombay Municipal Corpn & Ors, (1985) SCC 3 545; Maneka Gandhi (n 102); Francis
Coralie Mullin v The Adm’n, Union Territory of Del & Ors, (1981) 1 SCC 608; Anita Kushwaha v. Pushpa Sadan
AIR 2016 SC 3506.
164
M. C. Mehta v Union of India 2016 8 SCC 509.
165
Chameli Singh v State of U.P. (1996) 2 SCC 549; M/S. Shantistar Builders v Narayan Khimalal Totame & Ors
(1990) 1 SCC 520.
166
Board of Trustees of the Port of Bombay v Dilipkumar Raghavendranath Nandkarni, (1983) 1 SCC 124; M. J.
Sivani v State of Karnataka & Ors, (1995) 6 SCC 289.
167
Sheela Barse & Ors v Union of India & Ors, (1986) 3 SCC 596; Brij Mohan Lal v Union of India & Ors,
(2012) 6 SCC 502.

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

[1]; secondly, the right to information and informed consent [2]; and thirdly, the right to
privacy [3].

1. THE SAID REGULATION INFRINGES UPON THE RIGHT TO HEALTH AND TO REFUSE
MEDICAL TREATMENT

(¶ 71.) It is submitted that no regulation of the State Gov. can mandate the performance of any
medical activity or treatment over the body of an individual. The Hon’ble SC has, in a catena
of judgments, emphasized that the main pillar of medical ethics is the principle of ‘Self-
determination’.168 This principle strongly promotes each competent adult’s right to decide the
course of his or her medical treatment, even if the choice made leads to a risk of death. Further,
the right to health is a major right subsumed under Art. 21. 169
(¶ 72.) The Hon’ble SC has held that patient autonomy and beneficence are the two most
important factors that must be taken into account.170 In Aruna Ramachandra Shanbaug v. Union
of India 171, the Apex Court held that “the principle of the sanctity of human life must yield to
the principle of self-determination.”
(¶ 73.) The principle that an individual’s body is inviolate should they refuse medical treatment
has been upheld globally. It has been held that even if the choice to refuse medical treatment
is irrational or non-existent, it cannot be ignored because the right to determine what is done
with an individual’s body is fundamental to the individual’s place in society.172
(¶ 74.) In the present case, the State of Ariana, by mandating vaccination as a pre-condition
for people to use public or private transport and to attend offices 173, is in effect taking away the
individual’s right to refuse medical treatment by imposing coercive measures. The right to self-
determination must be one that is free from unreasonable consequences and ramifications.
(¶ 75.) The DOVID-19 virus has a history of side effects such as memory loss, nausea and
headaches174, with no clarity on the chances of death. It is also a globally acknowledged fact,
through numerous studies, that nearly all vaccinations have a capacity to induce adverse side
effects on numerous individuals.175
168
Aruna Ramchandra Shanbaug v Union of India & Ors, (2011) 4 SCC 454; Common Cause v Union of India,
(2014) 5 SCC 338; Shampa Singha v State of West Bengal, 2019 SCC OnLine Cal. 153.
169
Bandhua Mukti Morcha (n 5).
170
Aruna Ramchandra Shanbaug (n 168).
171
Aruna Ramchandra Shanbaug (n 168).
172
Cruzan v Director, Missouri Department of Health, 497 U.S. 261; Malette v Shulman, 67 DLR (4th) 321;
re MB Medical Treatment, (1997) 2 FLR 426.
173
Moot Proposition, Annexure B.
174
Moot proposition ¶9.
175
‘VAERS Table of Reportable Events Following Vaccination” (21 March 2017)
<https://vaers.hhs.gov/docs/VAERS_Table_of_Reportable_Events_Following_Vaccination.pdf> accessed 7
June 2021; World Health Organization, ‘Vaccine Safety Basics Learning Manual’ (2013) Module 2

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

(¶ 76.) Further, the vaccines have been released and granted immunity before new variants of
DOVID-19 were discovered 176, showing that there is no research on their efficacy and effects
in light of these updates. These constitute a major violation of the fundamental right to health.
There is also large-scale skepticism among the general public regarding the vaccines177. In such
dangerous conditions, the right to refuse medical treatment is paramount and essential.
(¶ 77.) Therefore, the said regulation essentially strips the individual off his or her right to
refuse an invasive medical procedure.

2. THE SAID REGULATION VIOLATES THE RIGHT TO INFORMED CONSENT

(¶ 78.) The Hon’ble SC has established previously that “informed consent” by a patient is a
sine qua non even in medical procedures, in the absence of which no such procedure can be
undertaken.178 Further, each citizen has an inherent right to receive complete information
regarding matters of public concern, as only an informed citizen can make reasoned
decisions.179
(¶ 79.) This informed consent involves two kinds of rights after receiving access to all requisite
information – a negative right of an individual against being subject to interference of others
and a positive right of an individual to choose what activities to be a part of. 180 Informed
consent must be free from any imposition, coercion or undue influence.181
(¶ 80.) Patients are by and large unaware of the scientific intricacies of diseases and any
counter treatment done to combat such a disease, including any adverse effects arising thereof.
Therefore, even if adverse effects are anticipated, they should be expressly conveyed.182 The
Indian Medical Council (Professional Conduct, Etiquette & Ethics) Regulations 2002 provide
for informed consent of the patient for various medical procedures as well.183
(¶ 81.) The Hon’ble Delhi HC, while reviewing a notice mandating compulsory vaccination
against Measles and Rubella in children, held that such a requirement without permitting the
parents of such children to give informed consent violates Art. 21. The Court also highlighted

<https://www.who.int/vaccine_safety/initiative/tech_support/Vaccine-safety-E-course-manual.pdf> accessed 7
June 2021; Kathleen Stratton & Ors, Adverse Effects of Vaccines: Evidence and Causality (The National
Academies Press, 2012).
176
Moot proposition ¶14.
177
Moot proposition ¶9.
178
Samira Kohli v Dr. Prabha Manchanda & Anr, (2008) 2 SCC 1; Kalpana Mehta & Ors v Union of India &
Ors, (2017) 7 SCC 302; Aarushi Dhasmana v Union of India & Ors, (2013) 9 SCC 475.
179
Reserve Bank of India v Jayantilal N. Mistry, (2016) 3 SCC 525.
180
National Legal Services Auth. v Union of India, (2014) 5 SCC 438; Anuj Garg v Hotel Ass’n of India, (2008)
3 SCC 1.
181
Common Cause (n 168).
182
Malay Kumar Ganguly v Dr. Dukumar Mukherjee & Ors, (2009) 9 SCC 221.
183
Indian Medical Council (Professional Conduct, Etiquette & Ethics) Regulations 2002.

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

an urgent need to disseminate full information regarding anything that concerns the vaccine
manufacturing or administration.184
(¶ 82.) In the present case, the State of Ariana has imposed a requirement of mandatory
vaccination without providing any information regarding the manufacturing process and
ingredients, the possible side-effects, the risk of death or how to combat episodes of adverse
effects arising from the vaccine185. The said regulation compels individuals to accept
vaccination without the full requisite info. that would be sufficient for informed consent.
(¶ 83.) Furthermore, even if an individual does give consent, such consent cannot be
considered as free consent due to the coercive restrictions put forth by the State of Ariana, such
as restrictions on movement and trade 186. Therefore, the said regulation violates the right to
informed consent that is essential to every individual.

3. THE SAID REGULATION DOES NOT PRESERVE THE RIGHT TO PRIVACY

(¶ 84.) The Right to Privacy is a fundamental right that is subsumed within the far-reaching
scope of Art. 21 of the Constitution of Diana. 187 The Hon’ble SC has held that bodily privacy
and integrity is an essential part of the Right to Privacy 188 and therefore concerns of privacy
are raised when the State attempts to impose itself on the body of its subjects. 189
(¶ 85.) The negative right to prevent any individual from either interfering with one’s body or
imposing unreasonable restrictions on the enjoyment of bodily functions is implicit in such a
Right to Privacy.190
(¶ 86.) In the present case, the said regulation constitutes an unfair intrusion into the bodily
integrity of an individual by denying them the autonomy to permit such access to their body.
(¶ 87.) Further, the State of Ariana is mandating the injection of a foreign drug – the safety of
which has neither been displayed nor guaranteed191 – into the bodies of individuals, which
constitutes a violation of mental privacy.192 Therefore, the said regulation is not in line with
the established norms of privacy that are fundamentally guaranteed by the Constitution of
Diana.

184
Master Hridaan Kumar Minor Through & Ors v Union Of India & Anr, W.P. (C) No. 343/2019.
185
Clarifications to the Moot Proposition, ¶21.
186
Moot Proposition, Annexure B.
187
Justice K. S. Puttaswamy (Retd) v Union of India, (2017) 10 SCC 1.
188
Marimuthu v Inspector of Police, 2016 SCC OnLine Mad 10175; Prahlad v State of Haryana, (2015) 8 SCC
688.
189
Justice K. S. Puttaswamy(Retd) v Union of India, (2017) 10 SCC 1; Her Majesty, The Queen v Brandon Roy
Dyment (1988) 2 S.C.R. 417; Francis Coralie Mullin (n 163).
190
Justice K. S. Puttaswamy (Retd) v Union of India, (2017) 10 SCC 1, ¶23.
191
Moot Proposition ¶9, Clarification to the Moot Proposition ¶21.
192
Selvi & Ors v State Of Karnataka & Anr, (2010) 7 SCC 263.

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

B. THE SAID REGULATION IS NOT IN ACCORDANCE WITH THE PRINCIPLES OF ART. 14 OF

THE CONSTITUTION OF DIANA

(¶ 88.) In order for legislation to be within the boundaries of Art. 14 of the Constitution of
Diana, it is required that it is rational, non-arbitrary and adequately directed towards a specific
objective sought to be achieved.193 Further, under Art. 14, subordinate legislation does not
possess the same level of immunity that a statute passed directly by the legislature does and
can therefore be struck down as arbitrary if it does not follow the legislative intent of the statute
under which it has been passed.194
(¶ 89.) The said regulation, being a subordinate legislation, violates Art. 14 of the Constitution
of Diana because firstly, the classifications created by it are not reasonable [1] and secondly,
it suffers from arbitrariness and is excessive in nature [2].

1. THE SAID REGULATION CREATES UNREASONABLE CLASSIFICATIONS AND A CLASS

WITHIN A CLASS

(¶ 90.) The Hon’ble SC has laid down in a catena of judgments that in order for a legislation
to abide by Art. 14, it must satisfy the ‘reasonable classification’ test, which states that there
must be an intelligible differentia between the classifications made and there must be a rational
nexus to the objective sought to be achieved.195
(¶ 91.) For any classification to be valid, both the above tests must be in essence independently
and conjointly proved.196 If this cannot be proven either on a prima facie basis or by the
surrounding circumstances, the legislation must be struck down as it is considered as ‘naked
discrimination’.197 Further, any legislation that makes a “class within a class” is inherently
unconstitutional and must be struck down.198
(¶ 92.) In the present case, the aim of the said regulation is to create herd immunity via vaccines
as soon as possible 199. However, the said regulation makes certain classifications that find no
rational relation to this objective sought to be achieved.
(¶ 93.) The regulation exempts certain services from its purview such as manufacturing units
of food, fodder and pharmaceuticals among others 200. Yet there is no basis as to why several
193
Ramana Dayaram Shetty v Int’l Airport Auth. of India & Ors, (1979) 3 SCC 489.
194
Indian Express Newspapers (n 107).
195
Shri Ram Krishna Dalmia v Shri Justice S. R. Tendolkar, 1958 AIR SC 538; Saurabh Chaudhari v Union of
India, (2003) 11 SCC 146; State of Mysore & Anr. v P. Narasinga Rao, AIR 1968 SC 349; State of West Bengal
v Anwar Ali Sarkarhabib, AIR 1952 SC 75; Durga Das Basu, Shorter Constitution Of India (14th ed. 2009).
196
Rustom Cavasjee Cooper (Banks Nationalisation) v Union of India, (1970) 1 SCC 248.
197
R. K. Dalmia v Del Adm’r, AIR 1962 SC 1821.
198
State of U.P and Ors. v/s Committee of Management, Mata Tapeshwari Saraswathi Vidya Mandir and Ors.
(2010) 1 SCC 639; Sansar Chand Atri v/s State of Punjab and Ors. (2002) 4 SCC 154.
199
Moot Proposition ¶15.
200
Moot Proposition, Annexure B.

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

other essential services such as the police force, basic fruit vendors and grocery stores, post
and telecommunications and banks have not been exempted. The functioning of these services
is also essential for the smooth operation of a society, clearly showing that the differentia in
services exempted is not based on any rationale.
(¶ 94.) Further, the said regulation bars people from attending commercial establishments such
as offices and factories 201. This regulation has no intelligible differentia between commercial
establishments and non-commercial establishments such as Gov. departments, NGOs,
restaurants and shops among others. The said regulation, while making a class between
vaccinated and non-vaccinated people, also makes a class within a class between those working
in commercial establishments and those who do not. This is inherently unconstitutional.
Therefore, there is no intelligible differentia in the classifications made in the said regulation
and there is no rational nexus with the objective sought to be achieved.

2. THE SAID REGULATION IS A RBITRARY AND EXCESSIVE

(¶ 95.) Any legislation that is arbitrary is an antithesis to the equality guaranteed under Art. 14
of the Constitution of Diana. 202 Art. 14 strikes not only at arbitrariness in the legislation but
also possible arbitrariness in State action to ensure equality and fairness of treatment.203
(¶ 96.) The word ‘arbitrarily’ has been defined by the Hon’ble SC to mean “in an unreasonable
manner, as fixed or done capriciously or at pleasure, without adequate determining
principle...” 204
(¶ 97.) Further, the Apex Court has also established the Principle of Proportionality under Art.
14, which mandates – among other tests – that a State action or legislation must not be
disproportionate or excessive compared to the objective sought to be achieved, especially when
a less-restrictive option is available. 205
(¶ 98.) In the present case, the said regulation has certain provisions that are inherently
arbitrary. Firstly, the authorities are directed to use “all necessary measures” in a “humane and
judicious manner”206 to ensure the enforcement of the regulations. These terms used are vague
and susceptible to misuse by the authorities and promotes arbitrary action, especially when the
EA, 1897 grants immunity to any action done in “good faith” under the act.

201
Moot Proposition, Annexure B.
202
E. P. Royappa (n 108).
203
Maneka Gandhi (n 102); Ajay Hasia v Khalid Mujib Sehravardi, (1981) 1 SCC 722; Om Kumar v Union of
India, (2010) 2 SCC 386.
204
Sharma Transport (n 118).
205
Justice K.S. Puttaswamy (Retd) (n 32), Modern Dental College & Research Centre (n 29).
206
Moot Proposition, Annexure B.

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

(¶ 99.) Secondly, transport has been permitted for people to access “emergency, medical
services” 207, yet there has been no categorization of what an emergency medical service
constitutes, leaving scope for arbitrary decisions being taken by the enforcing authorities.
(¶ 100.) Lastly, the regulations do not permit any individual to even leave the State of Ariana
by private transport208. While the objective of the regulation is to prevent the spread of the
disease within Ariana, it imposes an arbitrary and irrational restriction on people wishing to
leave the State – that too by private transport.
(¶ 101.) The said regulation is also disproportionate and excessive, as the State of Ariana could
have first sought to employ less-restrictive measures. A WHO Report on Mandatory
Vaccination209 has stated that policy makers must first try all incentives to motivate people to
take vaccines and try to demonstrate their safety. Only if such measures fail should mandatory
vaccination even be considered.
(¶ 102.) Therefore, the State of Ariana should have first attempted to provide incentives for
vaccination, spread awareness about its safety and benefits and the risks of not taking them
before contemplating such rigid and restrictive measures. Further, the State has not even
enacted basic disease-control mechanisms such as a statewide lockdown or increased testing
of the public before imposing this strict regulation.
(¶ 103.) Therefore, the said regulation is in violation of Art. 14, as it is inherently arbitrary and
disproportionate.

C. THE SAID REGULATION VIOLATES THE RIGHT TO FREEDOM OF MOVEMENT AND TRADE

(¶ 104.) Art. 19 of the Constitution of Diana guarantees all citizens certain fundamental
freedoms. Art. 19(1)(d) ensures that all individuals may freely move about within the territory
of India, while Art. 19(1)(g) provides that individuals have the right to practice any profession
or carry out any trade of their choice.210
(¶ 105.) Under Arts. 19(5) and 19(6), the Gov. is empowered to impose reasonable restrictions
on the aforementioned freedoms if they are in public interest. 211 However, the term “reasonable
restrictions” has been held by the Hon’ble SC to imply intelligent care and deliberation.212

207
ibid.
208
ibid.
209
World Health Organisation, ‘COVID-19 and mandatory vaccination: Ethical considerations and caveats’ (13
April 2021) <https://www.who.int/publications/i/item/WHO-2019-nCoV-Policy-brief-Mandatory-vaccination-
2021.1> accessed 12 June 2021.
210
Constitution of India Art. 19(1)(d); Constitution of India Art. 19(1)(g).
211
Constitution of India Art. 19(5); Constitution of India Art 19(6).
212
Chintaman Rao v The State of M.P., 1951 AIR SC 118.

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

These restrictions must not be arbitrarily imposed and must strike an effective balance between
the freedom curtailed and the social control permitted by Arts. 19(5) and 19(6). 213
(¶ 106.) Further, restrictions can only be termed as reasonable if they possess a direct nexus to
the reasons for the restrictions.214 Such restrictions must be reviewed from an objective point
of view, representing the opinions of a majority of people and and social philosophy.215
(¶ 107.) The UK Public Health (Control of Diseases) Act, 1984 – which prescribes several
reasonable restrictions that may be imposed on individual freedoms during a pandemic216 –
expressly excludes compulsory vaccination from the category of reasonable restrictions. 217
(¶ 108.) The said regulation imposes restrictions that cannot be construed as reasonable and
are not a product of due care and diligence. Firstly, the said restrictions apply to people who
do not wish to get vaccinated 218. However, this is not reasonable as the said vaccines have a
history of causing side effects and their effects on the human body have not been adequately
explained to the public.219
(¶ 109.) Further, the WHO report on mandatory vaccines highlighted several ethical concerns
with mandatory DOVID-19 vaccination, such as a lack of sufficient evidence of vaccine
efficacy and vaccine safety, lack of public trust and the excessive nature of such a measure. 220
Therefore, the restrictions imposed put the public in an unethical and unsafe dilemma – to
choose between either a vaccine that may cause severe adverse effects and the right to earn a
livelihood and trade by visiting their offices or factories, which is highly unreasonable. Such
restrictions do not show intelligent care and deliberation.
(¶ 110.) Secondly, the public has responded with large scale criticism and uproar to the said
regulation 221, showing that the restrictions are not what the public desire and therefore not in
public interest when viewed by the majority.
(¶ 111.) Lastly, the restrictions on trade and movement have been arbitrarily imposed, without
any end-date provided making it indefinite in operation. Only a certain section of people who
work in commercial establishments have been deprived of their right to trade while others have
not. Further, the right to use public and private transportation has been curtailed but there has

213
Chintaman Rao (n 212).
214
M.C. V. S. Arunachala Nadar Etc v The State of Madras & Ors, 1959 AIR SC 300.
215
State of Madras v V.G. Row (n 49).
216
United Kingdom Public Health (Control of Diseases) Act 1984, s 45B; United Kingdom Public Health (Control
of Diseases) Act 1984 s 45C
217
United Kingdom Public Health (Control of Diseases) Act 1984, s 45E.
218
Moot Proposition, Annexure B.
219
Moot Proposition.
220
COVID-19 and mandatory vaccination: Ethical considerations and caveats (n 209).
221
Moot Proposition ¶16.

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

been no restriction on gatherings and assembly, demonstrating a lack of rationale in the

restrictions 222. Thus, Art. 19 of the Constitution has been infringed.

D. THE SAID REGULATION VIOLATES THE RIGHT TO FREEDOM OF RELIGION UNDER ART. 25

(¶ 112.) Arts. 25 and 26 of the Constitution of Diana ensure that each individual has the
freedom of conscience and religion, along with the inherent right to manage their own religious
affairs. 223 This right is equal across all individuals, leaving every citizen to follow their own
conscience.224 This right applies to actions done in pursuance to religion as well 225.
(¶ 113.) In the present case, Diana is an extremely religiously and ethnically diverse nation,
where utmost care is given to ensure that the rights of such diverse groups are maintained. 226
Certain religions are opposed to the principle of vaccination, while some people have
conscientious preferences to homeopathy and other Ayurvedic forms of treatment.
(¶ 114.) Further, there has been no information regarding the ingredients of the vaccine or the
process of manufacturing227. Therefore, some religious groups may oppose certain raw
materials used, such as the Hindu community opposing beef-derivatives while the Muslim
community opposing pork-derivatives, potentially violating Art. 25.

E. THE SAID REGULATION IS ULTRA VIRES AND BEYOND THE SCOPE OF THE EA, 1987

(¶ 115.) Legislative intent and the reasons for enactment of statutes are key to understand the
scope and powers that a statute accords during interpretation. 228 The primary rule of the
interpretation and construction of statutes is that the provisions of the statute must be construed
keeping in mind the purpose behind them. 229 This is the paramount objective of the Court while
interpreting the scope of a statute.230
(¶ 116.) As per s. 2 of the EA, 1897, the State Gov. is empowered to take temporary measures
as it deems fit to prevent the outbreak of or curb the spread of any disease. 231 It is important to
recognize that the Act gives the State Gov. powers to make only “temporary” measures. This

222
Moot Proposition, Annexure B.
223
Constitution of India Art. 25; Constitution of India Art, 26.
224
Indian Young Lawyers Ass’n v. State of Kerala, (2019) 11 SCC 1.
225
Sardar Syedna Taher Saifuddin Saheb v State of Bombay 1962 AIR SC 853; John Vallamattom & Anr v Union
of India, (2003) 6 SCC 611; The Commissioner Hindu Religious Endowments, Madras v Shri Lakshmindra
Thritha Swaminar of Sri Shirur Mutt, AIR 1954 SC 282.
226
Moot Proposition ¶16.
227
Clarification to the Moot Proposition ¶21.
228
State of Guj. v Hon’ble Mr. Justice R.A. Mehta (Retd), (2013) 3 SCC 1.
229
Prakash Nath Khanna v Commissioner of Income Tax, (2004) 9 SCC 686; Padma Sundara Rao v State of T.N,
(2002) 3 SCC 533; Francis Bennion, Bennion on Stautory Interpretation (Version 24, Vol 14, 2010) 442.
230
Union of India v Filip Tiago De Gama of Vedem Vasco De Gama, (1990) 1 SCC 277.
231
EA, 1897, s 2.

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MEMORANDUM for PETITIONER ARGUMENTS ADVANCED

is also evident by the Public Health Report, 1897 released after the enactment of the Act, by
which only temporary measures such as evacuation of areas, prevention of overcrowding,
removal of earth floors and cutting off water supplies were implemented.232
(¶ 117.) The definition of “temporary” is “that which is to last for a limited time only, as
distinguished from that which is perpetual, or indefinite, in its duration.” 233 The SC has held
that temporary powers given to the executive must not be used to bring about permanent effects
or changes.234 The said regulation, which mandates vaccination, is implementing a regulation
that ultimately has a permanent effect on the bodies of people. The results of the vaccines on
the human body cannot be undone or reversed, but are perpetual. Further, there is no end date
to the restrictions prescribed 235, showing that it is indefinite in operation.
(¶ 118.) It is submitted that at the time of enactment of the EA, 1987, there already existed in
India two legislations focused solely on the concepts of vaccination and inoculation – the
Vaccination Act, 1880 and the Compulsory Vaccination Act, 1892. 236 The latter was in effect
in over 80% of British India.237 Therefore, the EA, 1897 was clearly not implemented to bring
within its purview the issue of vaccinations as this concept was already well within the purview
of existing laws. Thus, the said regulation is ultra vires to the EA, 1987.

232
Rudrajit Paul, ‘Epidemic Act of India’ (J Indian Medical Ass’n, Vol 118, September 2020).
233
Henry Campbell Black, Black's Law Dictionary (4th edn 1971,).
234
Krishna Kumar Singh & Anr v State of Bihar, (1998) 5 SCC 643.
235
Moot Proposition, Annexure B.
236
Vaccination Act 1880; The Compulsory Vaccination Act 1892.
237
Chandrakant Lahariya, ‘A brief history of vaccines & vaccination in India’ (Indian J Med Res, April 2014)
<https://vaccine.icmr.org.in/images/pdf/ijmr_reference.pdf > accessed 13 June 2021.

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MEMORANDUM for PETITIONER PRAYER

PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, it is most
humbly and respectfully prayed that this Hon’ble Supreme Court may be pleased to:

i. The writ petition by way of PIL is maintainable under Article 32 of the Constitution
of Diana.
ii. To issue a writ of mandamus or any other appropriate writ declaring the EAA, 2021
to be violative of Part III of the Constitution of Diana.
iii. To issue a writ of mandamus or any other appropriate writ declaring the regulation
issued by the State of Ariana to be unconstitutional and ultra vires to the EA, 1987.

AND/OR

Pass any other order it may deem fit in the interests of justice, equity and good conscience.

For This Act of Kindness, The Petitioner Shall Duty Bound Forever Pray

Sd/- _______________________

Counsel for the Petitioner

1st NLUO PHFI Public Health Law National Moot Court Competition XXIV