These Are Luxury Litigations: Supreme Court To Petitioners Seeking Inquiry Into Alleged Adverse Effects Of Covid Vaccine

The Supreme Court today remarked that a Petitioner seeking examination of issues surrounding adverse effects of a Covid-19 vaccine might be indulging in "luxury litigation" for having filed a Writ Petition after a death in the family, instead of claiming compensation.

The Court was hearing a Writ Petition by two Petitioners whose daughters had died in 2021 shortly after receiving the first dose of Covishield vaccine, supposedly suffering from its adverse effects. 

After issuing notice on the amended petition seeking additional relief, a two-Judge comprising Justice Vikram Nath and Justice Prasanna B. Varale said, "These are all luxury litigations, Mr. Gonsalves." Senior Advocate Colin Gonsalves, appearing for the Petitioners protested that his client's children had died. "Your children died, you should have made a compensation claim, not an Article 32 petition. But (since) this Court has entertained it, we will have to decide it."

Additional Solicitor General of India Aishwarya Bhati submitted that the Court had considered the issue of Adverse Effects Following Immunisation (AEFI) in a previous case. "(This Court) looked at the entire issue of Covid vaccination, which was disposed of by a reported Judgment dealing with AEFI, which is adverse effects after vaccine immunisation," referring to the Judgment in Jabob Puliyel v. Union of India (2022).

"Sife effect can be there, whieh are notified by the drug companies in the vaccination itself. It is ultimately a question of balancing the equities. Covid was a disaster like no other. More than five crore 33 lakh people lost their lives due to Covid", the ASG submitted.

Gonsalves submitted that the AstraZeneca vaccine was discontinued across the world due to side effects of getting blood clots. 

In Jabob Puliyel, on the aspect of adverse reactions to vaccination, the Court had directed the Union Government to "facilitate the reporting of suspected adverse events by individuals and private doctors on a virtual platform and the reports so made shall be publicly accessible... All necessary steps to create awareness of, and to navigate, this platform for self-reporting shall be effectuated by the Government, roping in and training relevant participants right from the ground level of vaccine administration."

"Nothing remains in this," Bhati insisted. "But not according to Mr. Gonsalves," Justice Nath said, adding in a lighter vein, "Until he is fully exhausted, he will not spare us."

The original petition sought the appointment of an independent medical board for investigating the deaths, the preparation of a protocol for detection and treatment for adverse effects following immunisation. The Petitioners sought a "significant monetary compensation," which they said would be donated to organisations working on social issues.

The Petitioners last month filed an application to amend the petition. They now also seek an Order directing that all communications of the government regarding vaccines should specify that taking them is voluntary and specify the possible serious adverse events that may occur. It submits that the treatment protocols for these adverse events shall be sent to all hospitals in the country.

Gonsalves contended that Doctors are now aware of the adverse affect of the vaccine and that for a blood clot in the brain of the Petitioner's children, painkillers were prescribed by the Doctor. 

The Petitioners have additionally asked for a direction to include certain "world renowned experts" in the field of immunisation to examine government records on the Covid-19 pandemic, including on deaths and adverse effects following vaccination and the treatment protocol followed and specify guidelines to be followed in future, among other things.

On August 29, 2022 Order, the Court issued notice to the Union Government, the Central Drugs Standard Control Organisation and the Indian Council of Medical Research.

The Court said, "Though, ordinarily we would have considered relegating the petitioners to the appropriate regular remedies because the matter might involve determination of certain basic questions of fact so as to bring it within the four-corners of a case of medical negligence". Perusing the post-mortem report filed by the Petitioners, the Court said "it appears appropriate to call upon the respondents to reply." 

Cause Title: Rachana Gangu And Anr. v. Union of India And Ors. [W.P.(C) No. 1220/2021]