People consciously not taking jabs pose greater risk, says Bombay high court

Upholds the Mumbai Port Trust’s direction that unvaccinated employees have to produce negative test results every 10 days at their own cost.

People taking a conscious decision to not vaccinate against Covid-19 are not entitled to the same treatment given to inoculated persons, the Bombay high court said on Tuesday while upholding the Mumbai Port Trust’s direction that unvaccinated employees have to produce negative test results every 10 days at their own cost.

Some employees moved court on August 5 against the MPT circular, saying it discriminated between vaccinated and unvaccinated employees and violated their fundamental rights. (File/Representative use)

It was “a reasonable restriction on fundamental rights of the Petitioners to carry out their occupation or trade,” the court said.

“We are convinced that persons taking a conscious decision not to vaccinate themselves are effectively deciding to place themselves at a greater risk of contracting and/or transmitting the disease than a vaccinated person,” a division bench of justices SJ Kathawalla and Abhay Ahuja said.

“While the Petitioners’ decision not to take the vaccination is well respected, that does not mean that they are ipso facto entitled to the same treatment as that given to vaccinated persons by the MPT,” the bench said, dismissing a petition filed by seven employees of the port authority.

On June 15, the MPT had directed that with effect from the following day, employees who have not been vaccinated will be required to pay for their treatment in case they contracted Covid-19, and will not be permitted to attend office unless they produced a negative test report at their own cost every 10 days.

Vaccination was a voluntary act, the disgruntled employees argued. They produced a right to information response by the health ministry to support their contention.

Denying the premise that both vaccinated and unvaccinated persons are equally susceptible to transmitting the virus, the court said that the charge was of a “general” nature and “did not contain reference to any scientific material”.

The bench relied on material submitted by Shiraj Rustomjee, a friend of the court, which included information provided by medical experts and the World Health Organization, which pointed out that vaccinated persons are far less likely to contract or transmit Covid-19.

Even in the case of such breakthrough infections, the severity of the infection and the risk of transmission of the disease are significantly reduced in vaccinated persons and, hence, “it is erroneous to hold that because breakthrough infections are possible in vaccinated persons, they stand on the same footing as unvaccinated persons,” the court held.

“The Government of Maharashtra has, in its various Break the Chain orders which have been annexed by the MPT, imposed the same requirement for unvaccinated individuals to carry a negative RT-PCR result certificate with a 15-day validity period,” the judges observed.

The port trust had provided free vaccination to its employees and the vast majority had got themselves inoculated, lawyer Rahul Jain said, appearing for the MPT.

It is reasonable for a large organization such as the MPT to require a higher degree of checking and monitoring of the Covid-19 status of unvaccinated persons, the court said.

“We see no reason in law as to why MPT should be compelled to bear the cost of such treatment when it is offering the alternative of vaccination free of charge and is also willing to bear the cost of treating breakthrough infections in such cases free of charge,” the bench said. “In fact, it is the Petitioners’ demands that now appear to us to be unreasonable, and not the other way around.”