3RD INTRA COLLEGE MOOT COURT COMPETITION

BEFORE

THE HONORABLE HIGH COURT OF STATE OF RARA

COMPENDIUM FOR RESPONDENT WRITTEN SUBMISSIONS

(ORIGINAL JURISDICTION)

BETWEEN

AAROGYA TIWARI -
PETITIONER -1
V.
PHARMAGENIX -
RESPONDENT 1
UNION OF RARA REP. BY ITS GEN. SECRETARY -
RESPONDENT 2
S.NO TABLE OF CONTENTS PAGE
NUMBER
1. CASE EXTRACTS 1-8

2. FAQ’S ON COVID-19 VACCINES AND VACCINATION 9-27

PROGRAM RELEASED BY MOFHW ON 7TH AUGUST 2021

3. EMERGENCY USE LISTING BY WHO 27-28

4. EUL LISTING PROCEDURE BY WHO 29-30

5. 12 VACCINES GRANTED EMERGENCY USE LISTING BY WHO 31-33

6. COVID-19 OPERATIONAL GUIDELINES BY MOFHW 34-35

 CASE EXTRACTS

1. ASULAL LOYA VS. UNION OF INDIA, 2008 SCC ONLINE DEL 838

2. ACADEMY NUTRITION IMPROVEMENT VS. UNION OF INDIA

3. BOLAM V. FRIERN HOSPITAL MANAGEMENT COMMITTEE (1957) 1 WLR 582-

17

4. DDA VS JOINT ACTION COMMITTEE, (2008) 2 SCC 672. -15

5. JACOB PULIYEL V. UNION OF INDIA & ORS. LNIND 2022 SC 309

6. JEAN GEORGE & ANR. V. SERUM INSTITUTE OF INDIA LTD. & ORS.

7. JACOBSON VS MASSACHUSETTS, 197 U.S. 11 (1905)

8. RADHA KRISHNA INDUSTRIES V. STATE OF HIMACHAL PRADESH AND ORS,

(2021) 6 SCC 771

9. SERUM INSTITUTE OF INDIA PVT. LTD. AND ORS. V. YOHAN TENGRA

& ORS. LNIND 2023 BOM 368

10. S S P GUPTA V. UNION OF INDIA, AIR 1982 SC 149.- 13

 11. SUBHASH KUMAR V. STATE OF BIHAR, AIR 1991 SC 420

ASULAL LOYA VS. UNION OF INDIA

Name of the case: Asulal Loya vs. Union of India,

Citation: 2008 SCC OnLine Del 838,
Memorial Page Number: 14

Ratio Decidendi: The maintainability of the petition was questioned in the above case given
that the entity concerned above had ceased to be “State” or “other authority” under Article
12. The Court observed that it is a well settled principle that writ petition is not maintainable
against private limited company or public limited company in which the State does not have a
majority control unless the question raised relates to a public function being discharged by
such company. writ remedy under Art 226 is primarily applicable to public/statutory
authorities and can also be issued against any private body or person, however, it is
limited to the discharge of public function and enforcement of public duty.

Respondent’s understanding: In the current Scenario, Pharmagenix is a Private Limited

Company which only have government control but doesn’t have any public duty enforced by
the government of Rara. Hence, the writ petition filed against the Respondents has no merits.

ACADEMY NUTRITION IMPROVEMENT VS. UNION OF INDIA

Name of the Case: Academy Nutrition Improvement Vs. Union of India

Citation: Writ Petition (C) No. 80 of 2006
Memorial Page Number: 13
Ratio Decidendi of the Judgement: The case talks about the need of domain experts in
deciding an issue as Courts are not equipped to decide the medical issue relating to public
health. In the present case “whether compulsory iodization should be replaced by voluntary
iodization or not?” is the issue as has been done in some developed countries, so that both
common salt and iodized salt are available in the market and only those 10% who are
deficient in iodine can opt for iodized salt. The Government of India has taken note of
scientific and medical inputs, research results and survey data to conclude that compulsory
iodisation is the most effective and accepted method for elimination of iodine deficiency
disorders and that consumption of iodized salt by persons not suffering from iodine
deficiency will not adversely affect them. Rule 44-I is stated to be in implementation of a
policy decision regarding public health. The Court held that the material placed by the
petitioners is not sufficient to hold that the reason for the ban is erroneous and that Rule 44-I
is unreasonable and arbitrary.

Respondent’s Understanding: Similarly in the current situation also, the court cannot come
into conclusion about the reasonability of the vaccine without domain experts’ evidence and
solutions. Hence, the matter of subject for discussion may not fall under the ambit of the
court

BOLAM V. FRIERN HOSPITAL MANAGEMENT COMMITTEE (1957) 1 WLR 582- 17

Name of the case: Bolam v. Friern Hospital Management Committee

Citation: (1957) 1 WLR 582- 17

Memorial Page Number: 17

Facts of the Case: Bolam v Friern Hospital Management Committee (1957) is a landmark
case in negligence law in England. John Bolam suffered from depression. He was
advised by the consultants treating him that he should have electroconvulsive therapy
(ECT). Prior to this procedure he was not warned that there was a risk of fracture, nor
was he physically restrained or provided with relaxant drugs. During the procedure he
suffered a fractured hip. He claimed that the doctors treating him had been negligent by
not warning him of the risk, nor, offering relaxant drugs or restraints. The difficulty was
that at the time it was not agreed upon whether to warn the patient of the risk of fracture,
nor was it agreed as to whether the patient should be restrained or given relaxant drugs
during the procedure to mitigate against the risk of fracture.
Ratio of the case: In a leading case of India1 dealing with doctor’s liability in cases of medical

negligence, the SC affirms that the Bolam test as a test for deciding the Medical liability of a

medical professional to hold for medical Negligence.

Medical Negligence Ingredients for Bolam Test:

Negligence as a tort is the breach of a legal duty to take care which

results in damage, undesired by the defendant, to the plaintiff.

Thus, its ingredients are: (a) a legal duty on the part of A towards B to

exercise care in such conduct of A as falls within the scope of the duty;

(b) breach of that duty; (c) consequential damage to Breach of Such duty

Respondent’s Arguments: None of the ingredients are satisfied to for

the medical negligence claim

DDA VS JOINT ACTION COMMITTEE

NAME OF THE CASE: DDA VS JOINT ACTION COMMITTEE

CITATION: (2008) 2 SCC 672. -15

MEMORIAL PAGE NUMBER: 15

MERITS OF THE CASE: The Supreme Court observed that an executive order termed as a

policy decision is not beyond the pale of judicial review. Whereas the superior courts may

not interfere with the nitty-gritty of the policy, or substitute one by the other but it will not

be correct to contend that the court shall lay its judicial hands off, when a plea is raised that

the impugned decision is a policy decision. It was held to be a matter which is subject to

judicial review and also the executive was said to have its free space to make policy

decisions
1
Samira Kohli v. Dr. Prabha Manchanda (2008) 2 SCC 1
 RESPONDENT’S ARGUMENTS: Similarly, we agree there can be a judicial review upon the

policy and operational guidelines formulated by the government, but we urge to the court

that current judicial review creates vaccine hesitancy and such review must not interfere

with the nitty-gritty of the policy

JACOB PULIYEL V. UNION OF INDIA & ORS

NAME OF THE CASE: JACOB PULIYEL V. UNION OF INDIA & ORS.

CITATION OF THE CASE: LNIND 2022 SC 309

CASE REFERRED ONLY FOR PURPOSE OF THE PREPARATION OF RESPONDENT MEMORIAL

ONLY

MERITS OF THE CASE: The Supreme Court of India (Court) held that the restrictions
imposed on individuals who have not fully vaccinated themselves against COVID-19
cannot be considered to be constitutional. Notably, the judgment comes at a time when
the health crisis in the country emanating from the outbreak of COVID-19 appears to have
generally become manageable compared to the significantly graver situation that had existed
from time to time in the past two years.

At the outset, the Court observed that while courts do not, and should not, intervene in policy
decisions such as those in relation to vaccination, the judiciary does have the power to strike
down a policy for reasons of mala fides, unreasonableness, arbitrariness, or unfairness. In the
words of the Court:

"The rule of prudence is that courts will be reluctant to interfere with policy decisions taken
by the Government, in matters of public health, after collecting and analysing inputs from
surveys and research. However, this does not mean that courts have to abdicate their right to
scrutinize whether the policy in question is formulated keeping in mind all the relevant facts
and the said policy can be held to be beyond the pale of discrimination or unreasonableness,
bearing in mind the material on record".

REASON FOR NOT CONSIDERING THE RATIO IN MEMORIAL: The Decision of the Court
came after the cause of action of the petition filed.
 JEAN GEORGE VS SERUM INSTITUTE OF INDIA

NAME OF THE CASE: JEAN GEORGE VS SERUM INSTITUTE OF INDIA

CASE REFERRED ONLY FOR PURPOSE OF THE PREPARATION OF

RESPONDENT MEMORIAL ONLY BUT NOT USED FOR ANY ARGUMENT FORMATION

The current case is filed at the Kerala High court for compensation by the government for

mandating the vaccination and the same is been allowed by the High Court and writ of

Mandamus is been approved.

JACOBSON VS MASSACHUSETTS, 197 U.S. 11 (1905)

NAME OF THE CASE: JACOBSON VS MASSACHUSETTS

CITATION: 197 U.S. 11 (1905)

MEMORIAL PAGE NUMBER: 15

MERITS OF THE CASE: It was a United States Supreme Court case in which the Court
upheld the authority of states to enforce compulsory vaccination laws. The Court's decision
articulated the view that individual liberty is not absolute and is subject to the police power
of the state.
RESPONDENT’S ARGUMENT: Since the foreign Judgements have persuasive nature in the

current context the Hon’ble Court requested to consider the situation and allow the Sate of

Rara to Continue with its operational Guidelines

RADHA KRISHNA INDUSTRIES V. STATE OF HIMACHAL PRADESH AND ORS, (2021) 6 SCC 771

NAME OF THE CASE: RADHA KRISHNA INDUSTRIES V. STATE OF HIMACHAL PRADESH AND ORS,
CITATION: (2021) 6 SCC 771
REFERRED ONLY FOR THE REFERENCE OF THE RESPONDENT

MERITS OF THE CASE: The current case HC dismissed the writ petition under Art. 226 due to the
availability of Alternative remedy. Similarly the respondent also seeks for the dismissal of petition
because the petitioner has alternative remedy available over Dr. Chuckle’s Clinic for the loss.
SERUM INSTITUTE OF INDIA PVT. LTD. AND ORS. V. YOHAN TENGRA & ORS. LNIND 2023
BOM 368

NAME OF THE CASE: SERUM INSTITUTE OF INDIA PVT. LTD. AND ORS. V. YOHAN TENGRA
& ORS.
CITATION: LNIND 2023 BOM 368
REFERRED ONLY FOR REFERENCE

MERITS OF THE CASE: The Bombay High Court has granted interim relief to Serum Institute
of India (SII) in its defamation suit seeking damages of 100 crore from individuals and
organizations that allegedly posted false and defamatory content against the company. The
verdict was pronounced by Justice RI Chagla.

The judge held that the content in question was prima facie defamatory, as no justification
was provided by the defendants for the statements made. As a result, the High Court has
temporarily restrained the defendants - Yohan Tengra, his organization Anarchy for Freedom
India, and Ambar Koiri and his organization Awaken India Movement - from publishing any
derogatory and defamatory statements against SII or its employees. The defendants have been
directed to delete and remove the defamatory videos and contents.

Respondents Argument: The Bombay High court agreeing to the defamation claim
indirectly implies that the court also considered the serum Institute Vaccine to be safe and
sound, because if the vaccine is not safe then there will no merits in the Bombay HC granting
100 crore damages for the defamatory statements made by the Yohan Tengra.

S S P GUPTA V. UNION OF INDIA, AIR 1982 SC 149.

NAME OF THE CASE: S S P GUPTA V. UNION OF INDIA

CITATION: AIR 1982 SC 149.
MEMORIAL PAGE NUMBER: 13
MERITS OF THE CASE: The case Talks about the separation of Powers between Executive
and judiciary, though the case is about the legislative’s power to appoint the judges, the ratio
of the case is considered that “The case also laid emphasis on the independence of the
judiciary and that the executive must not interfere with it.”
Similar Apprehension is sought to be taken in the respondent’s claim that judiciary must only
check the executive’s policy but should not enter the nitty-gritty of the policy making.
SUBHASH KUMAR V. STATE OF BIHAR, AIR 1991 SC 420

NAME OF THE CASE: SUBHASH KUMAR V. STATE OF BIHAR

CITATION: AIR 1991 SC 420

MERITS OF THE CASE: The case speaks about the Sanctity of Writ Petitions AND PILS
Similarly, PILs emerged as a tool to enable participative justice but ended up getting abused
by certain individuals to fulfil their personal interests. Therefore, it is highly important to
understand the importance which PIL & Writ hold in our society to be able to use them
properly for bringing about social change and finding remedies for violation of fundamental
rights of sections/ classes of society. The present case of Subhash Kumar v. State of Bihar
and Ors. (1991) is an excellent example of how people attempt to fulfil their personal
vendetta under the garb of public interest, and how they can be deterred by imposing costs
and hefty fines. Lastly, as responsible citizens, it is also our duty to be responsible while
utilizing legal instruments which hold such high importance and not misuse them for our
personal gains.

Respondent’s Arguments: In the Current Scenario also, the petitioner should not invoke the
Writ Petition for their personal Vendetta and there are other remedies available for them in
the form of Torts and Consumer Protection Act against Dr. Chuckle’s.