I.

THAT THE PETITION IS NOT MAINTINABLE BEFORE THE HON’BLE

COURT

1. It is humbly submitted before the Hon’ble court that the instant petition brought under Art.
321 of the Constitution is not maintainable. The maintainability of a petition under Art. 322
depends on the facts of each case.3 The question as to when the Hon’ble apex court should
entertain the claim depends on the nature of the fundamental right alleged to have been
infringed and the remedy claimed.4 In the instantaneous case the petition is not maintainable.
This has been proved in following sub-issues.

I.A. THAT THERE HAS BEEN NO VIOLATION OF FUNDAMENTAL RIGHTS

2. It is humbly submitted before the Hon’ble court that Article 32 ensures the right to
approach the court in case of violation of fundamental rights. 5 Art. 32(1) confers upon
individuals the right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred.6 In the instantaneous case, the regulations laid down7 did
not lead to violation of fundamental rights and were laid down in a) to protect public health
and b) public interest.

I.A.a. THAT THE AMENDMENT WAS MADE TO PROTECT PUBLIC HEALTH

3. ‘Public Health’ refers to a goal for health of a population and to professional practices
aimed at its attainment.8 Art. 47 enshrined in Part IV as Directive Principle of State Policy
provides public health as the primary duty of the state. 9 Therefore, public health and
maintenance are top priority for the state.10 Art. 21 obligates the State to ensure access to life-
saving drugs to patients. A reasonable and equitable access to life-saving medicines is critical
to promoting and protecting the right to health. The Government must ensure that individuals
have access to essential medicines even for rare diseases like enzyme replacement for
Gaucher disease.11
1
Constitution of India, Art. 32;
2
Indian Constitution, Art 32;
3
Assam Sanmilitia Mahasangh and Ors. v. Union of India and Ors., (2015) 3 SCC 1, Tilokchand Motichand v.
H.B. Munshi, (1969) 1 SCC 110;
4
Tilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110, Rabindranath Bose v. Union of India, (1970) 1
SCC 84;
5
Constitution of India, Art. 32;
6
Article 32(1), Constitution of India
7
Factsheet;
8
Ashok Lanka v. Rishi Dikshit, (2006) 9 SCC 90.
9
Art. 47, Indian Constitution;
10
D.D. BASU COMMENTARY;
11
Mohd. Ahmed v. Union of India, (2014) 6 HCC (Del) 118
4. Sec. 2 of the Epidemic Disease Act, 1897, empowers state governments to take whatever
measures necessary to prevent the outbreak or spread of an epidemic disease. 12 Sec. 2A of the
13
act provides the similar power to the Central Government. Sec. 4 of the act provides
protection to anyone who has acted in good faith and under this act. 14 Section 6 of the
National Disaster Management Act, 2005 provides the powers and functions of National
Authority, it provides that the National Authority shall have the responsibility for laying
down the policies, plans and guidelines for disaster management for ensuring timely and
effective response to disaster.15

5. In the instantaneous case, the break out of pandemic, sudden surge in cases and lack of
adequate hospital services to accommodate such large population during illness lead to the
restrictions laid down by the Government. 16 Public Health is the State’s primary duty. 17 Diana
in order to foster the development of vaccination so as to curb the cases and to protect public
health, amended the Epidemic act and granted immunity to the vaccine manufacturers with
reasonable limitation.18

I.A.b. THAT THE RESTRICTIONS LAID DOWN BY THE STATE OF ARIANA

WAS DONE IN PUBLIC INTEREST

6. Sec. 2 of the Epidemic Disease Act, 1897, empowers  state governments to take whatever
measures necessary to prevent the outbreak or spread of an epidemic disease. 19. Sec. 4 of the
act provides protection to anyone who has acted in good faith and under this act.20

7. ‘Public Interest’ means general welfare of public that warrants recommendation and
protection, something in which public as a whole has a stake. 21 Under Art. 21, in order to
establish a violation, the act should be subjected to equality and reasonability test. 22 Article
14 ensures fairness and guarantee against arbitrariness 23 and provides that government’s
every action should be guided by public interest. 24 Art. 19(1)(e) provides that the right to

12
Section 2, Epidemic disease Act, 1897;
13
Section 2A, Epidemic Disease Act, 1897
14
Section 4, Epidemic Disease Act, 1897;
15
Section 6, National Disaster Management Act, 2005;
16
Factsheet;
17
Article 47 of the indian constitution.
18
Annexure A, Factsheet;
19
Section 2, Epidemic disease Act, 1897;
20
Section 4, Epidemic Disease Act, 1897;
21
Bihar Public Service Commission v. Saiyed Hussain Abba Rizwi, (2012) 13 SCC 61;
22
Sadhuram Bansal v. Pulin Behari Sarkar, AIR 1984 SC 1471;
23
Express Newspaper Ltd. v. Union of India, AIR 1986 SC 872;
24
LIC v. Consumer Education and Research Centre, AIR 1995 SC 1811;
reside and settle in any part of the country.25 The reasonable restriction under Article 19(5)
can be imposed if it is in public interest. 26 The Hon’ble court has also observed that
Government policy in the public interest would override the business interests of an
individual person.27Therefore, a restriction can be characterized to be reasonable if it strikes a
balance between the fundamental right and restriction imposed thereon.28

8. In the instantaneous case, the restrictions laid down by the State of Ariana does not violate
any fundamental rights. The State laid down such restriction as the turn out for vaccination
was very low and in order to curb the spread of the virus heard immunity was the only way
available to the State Government.29 Also, the mandatory vaccination certificate was imposed
so that the people could turnout for vaccination in order to save their individual businesses.30

I.B. THAT THE COURT CANNOT INTERVENE IN POLICY MATTERS

9. It is humbly submitted before the Hon’ble court that the Court cannot intervene in the
policy matters. It is well-settled in law that the Court does not interfere in a matter of
governmental policy since it is for the Government to decide. 31 The Court does not interfere
with government’s freedom of contract, invitation of tenders and refusal of any tender which
pertain to policy matter, the Court can interfere when the state decision or action is vitiated
by arbitrariness, unfairness, illegality, irrationality or unreasonableness.32

I.B.a. THAT THE POLICY IS NOT ARBITRARY

10. It is humbly submitted before the Hon’ble court that the immunity granted to the vaccine
manufacturers and the Epidemic (Amendment) Act, 202033 is not arbitrary policy and has
been laid down on reasonable grounds of public health and public interest and the
government took the decision within the ambit of its power.

25
Art. 19, Constitution of India;
26
State of Kerala v. Peoples Union for Civil Liberties, Civil Appeal Nos. 104-105 Of 2001;
27
State of Orissa v. Radheyshyam Meher, AIR 1995 SC 855 (857).
28
Om Kumar v. Union of India, AIR 2000 SC 3689;
29
Factsheet;
30
Factsheet:
31
Arunachal Pradesh v. Khudiram Chakma, 1994 Supp (1) SCC 615 : AIR 1994 SC 1461;
32
Tata Cellular v. Union of India, (1994) 6 SCC 651, State of M.P. and Others vs. Nandlal Jaiswal and Other,
(1986) 4 SCC 566;
33
Factsheet:
11. The Hon’ble court has held that Government policy in the public interest would override
the business interests of an individual person.34 Also, Sec. 2A of the act provides the similar
power to the Central Government. 35

12. In the instantaneous case, the immunity granted and the amendment act made by the
government in the Epidemic Act, 1897 is not arbitrary in nature as it has been done to protect
the public health.36 Thus, the policy is not prima facie arbitrary in nature and the court cannot
intervene in the matter.

I.C. THAT THE ALTERNATIVE REMEDY HAS NOT BEEN EXHAUSTED

13. It is humbly submitted before the Hon’ble court that the petitioner has not exhausted the
alternative remedy available to it under Art. 22637 of the Constitution.

14. Under Art. 32, the power to grant writs is a discretionary power of the Hon’ble court. 38
The rule of alternative remedy is a bar unless there is a complete lack of jurisdiction in the
authority to take action,39 however, the existence of a competent body to hear this particular
case questions the maintainability of the writ petition filed. Hon’ble apex court held in a case
that where there is alternative statutory remedy court should not interfere unless the
alternative remedy is unable to grant quick relief.40

15. In the instantaneous case, the petitioner has a competent body i.e. the High court, yet the
petition was brought directly before the Hon’ble Supreme Court. Thus, the writ petition is not
maintainable here.

Summary of Arguments

WHETHER THE INSTANT PETITION IS MAINTAINBLE BEFORE THE

HON’BLE COURT?

It is humbly submitted before the Hon’ble court that the writ petition is not maintainable
before the court as a) there has been no infringement of fundamental right which is important
for a writ petition under Art. 32 b)The courts cannot intervene in the policy matters and let
34
Supra 27;
35
Section 2A, Epidemic Disease Act, 1897
36
Factsheet;
37
Art. 226, Constitution of India;
38
K.D. Sharma v. SAIL, (2008) 12 SCC 481;
39
A.V. Venkateshwaran v. R.S.Wadhwani AIR 1961 SC 1906;
40
Asstt. Collector of Central Excise v. Jainson Hosiery, AIR 1979 SC 1889;
the Government decide it and c) That the petitioners have not exhausted the alternative
remedy.