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$~40 and 41 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 343/2019 & CM Nos.1604-1605/2019 MASTER HARIDAAN KUMAR MINOR THROUGH AND ORS. ..... Petitioners Through: Mr Anubhav Kumar and Mr Abhinav Mukherji, Advocates. versus UNION OF INDIA AND ANR. ..... Respondents Through: Mr Ramesh Singh, Standing Counsel, GNCTD with Mr Chirayu Jain and Ms Nikita Goyal, Advocates for GNCTD. Mr Sushil Kumar Pandey, Senior Panel Counsel with Ms Neha Sharma, Advocates for UOI with Dr Pradeep Haldar (Deputy Commissioner (IMM) Incharge). AND + W.P.(C) 350/2019 & CM Nos.1642-1644/2019 BABY VEDA KALAAN AND ORS. ..... Petitioners Through: Ms Diya Kapur, Ms Shyel Trehan and Mr Rishabh Sharma, Advocates. versus DIRECTORATE OF EDUCATION AND ORS. ..... Respondents Through: Mr Ramesh Singh, Standing Counsel, GNCTD with Mr Santosh Kumar Tiwari, ASC, Mr Chirayu Jain and Ms Nikita Goyal, Advocates for GNCTD. Ms Monika Arora, CGSC for R- 2/UOI with Mr Harsh Ahuja and Mr Praveen Singh, Advocate for UOI. CORAM: HON'BLE MR. JUSTICE VIBHU BAKHRU ORDER % 22.01.2019 1. The petitioners have filed the above-captioned petitions, inter alia, impugning the notification No. DE.23 (386)/Sch.Br./2018 dated 19.12.2018 (hereafter ‘the impugned notification’) issued by the Directorate of Education (DoE), Government of National Capital Territory of Delhi. By the impugned notification, the Directorate of Education (DoE) has directed the Chairman/Manager/Principal to direct all schools (whether Government, Government Aided and Private Unaided Recognised schools) to comply with certain guidelines relating to implementation of the Measles and Rubella (MR) vaccination campaign. Under the said campaign, MR vaccines are to be administered to all children aged between nine months and fifteen years (the beneficiaries). The said guidelines, inter alia, provide that no consent would be required from the beneficiaries / their parents for implementing the MR Campaign. 2. The petitioners are, essentially, aggrieved by the decision of the respondents to forcibly administer MR vaccination without the consent of the parents/guardians or family members of the beneficiaries (children aged between nine months to fifteen years). The petitioners in W.P.(C) 350/2019 pray that the impugned notification be set aside and further directions be issued that no vaccination be administered in cases where there is parental objection to such vaccination. The petitioners in W.P.(C) 343/2019, inter alia, pray that an order be issued to the respondents restraining them from forcibly administering vaccinations to children without the consent of their parents/guardians. 3. On 15.01.2019, this Court had observed that the contention of the petitioners, that children cannot be administered vaccination forcibly and without the parental consent, is merited. Mr Singh, learned counsel appearing for DoE and Government of NCT of Delhi (respondent nos. 1 and 2) did not dispute the said proposition that readily accepted that vaccination cannot be administered forcibly and without the consent of the parents. 4. He, however, submitted that an express affirmative consent from parents / guardians of the beneficiaries ought not to be a pre-condition for administering the said vaccine. He contended that such consent of the parents / guardians should be inferred unless they expressly state in the negative. He referred to the same as “opt-out consent”. 5. Plainly, in order for any parent or guardian to give his/her consent (whether expressly or by inference), it would be necessary for such parent or guardian to have complete information with regard to the proposed vaccination campaign. Clearly, for any parent or guardian to take an informed decision, it would be necessary for such parent to be aware of (a) the vaccine proposed to be administered; (b) contraindications or side effects of such vaccine; (c) the date on which such vaccine administered to the ward/children; and (d) the personnel who would administer the same. 6. Mr Raj Shekhar Rao and Ms Diya Kapur, learned counsel advanced arguments on behalf of the petitioners and Mr Ramesh Singh advanced arguments on behalf of respondent nos. 1 and 2. It was apparent from the said arguments that learned counsel for both the sides were ad idem that vaccination could not be administered to children without consent of their parents / guardians. Mr Pandey, learned counsel appearing for the Union of India, did not advance any submissions apart from stating that the MR Campaign was successfully implemented in twenty-six states of the country. 7. In view of the above, impugned notification, to the extent it provides that no consent is required for the beneficiaries and/or their parents, is quashed. 8. Mr Singh, also readily agreed, on instructions, that information with regard to MR campaign would require to be disseminated. He also handed over a tabular statement indicating the names of daily newspapers in English, Hindi, Urdu and Punjabi, which would carry the advertisements. It was also submitted that advertisements would be of a quarter page and would indicate the material information. It was also agreed that the said information would be put up on the website of DoE. 9. In view of the above, the controversy between the parties was narrowed down, essentially, on two issues, (a) whether an express consent of the parents/guardians was necessary or whether the same could be inferred by silence on the part of the concerned parents/guardians; and (b) whether the respondents were required to indicate the contraindications and the side effects of the vaccines in the newspaper advertisements as well as in other literature to be provided to parents/guardians of the beneficiaries. 10. Insofar as the first issue is concerned ‒ that is, whether an express consent from parents/guardians is necessary ‒ Mr Singh contended that the vaccination campaign is required to cover at least 95% of the beneficiaries within a short span of time for the same to be successful and, therefore, there would not be enough time for respondents to elicit a positive express response from the parents/guardians. He had further submitted that there are a large number of students from EWS categories and it would be very difficult to ensure a response from the parents of such students. He further submitted that the respondents would also have no opportunity to counsel such parents. 11. Ms Diya Kapur countered the aforesaid submissions. She submitted that she had contacted certain schools and the data indicated that parents of EWS students, in most cases, had responded to the consent forms sent by the concerned schools. She referred to the case of one such school (Bal Bharti), where consent forms were sent to 856 students from the EWS category and 812 such consent forms were received back. Out of the aforesaid, 394 had not agreed for administration of the MR vaccine. She further contended that the contention of the respondents, that it is difficult to contact students from EWS category, is without basis. She further referred to various newspaper reports, which had reported incidents where the children had fallen sick after administration of the MR vaccine. She contended that it was, thus, necessary for parents to take an informed decision. 12. Mr Singh, countered the aforesaid submissions and submitted that vaccination was a necessary measure for eradication of the diseases in question and those children, who are not vaccinated, may act as a disease vector putting the general health of others at risk. He contended that in larger public interest, it was necessary that the MR campaign be supported by all measures. 13. Undisputedly, there is an urgent need to disseminate information regarding the MR campaign and the assumption that children could be vaccinated forcibly or without consent is unsustainable. This Court is of the view that all efforts are required to be made to obtain the decision of the parents before proceeding with the MR campaign. In this regard, it would be apposite to ensure that the consent forms/slips are sent to each and every student. Since the time period for implementing the campaign is short, the response period should be reduced and parents / guardians of students must be requested to respond immediately and, in any case, in not more than three working days. If the consent forms/slips are not returned by the concerned parent, the class teacher must ensure that the said parents are contacted telephonically and the decision of such parent is taken on phone. The concerned teacher ought to keep full records of such decisions received telephonically. In respect of those parents/guardians that neither return the consent slips nor are available telephonically despite efforts by the concerned teacher, their consent can be presumed provided respondent nos. 1 and 2 ensure that full information regarding the commission is provided to all parents. 14. The contention that indication of the side effects and contraindications in the advertisement would discourage parents or guardians from consenting to the MR campaign and, therefore, the same should be avoided, is unmerited. The entire object of issuing advertisements is to ensure that necessary information is available to all parents/guardians in order that they can take an informed decision. The respondents are not only required to indicate the benefits of the MR vaccine but also indicate the side effects or contraindications so that the parents/guardians can take an informed decision whether the vaccine is to be administered to their wards/children. 15. In view of the above, it is directed as under: (1) Directorate of Family Welfare shall issue quarter page advisements in various newspapers as indicated by the respondents, namely, The Hindustan Times, The Times of India, The Hindu, The Pioneer, The Indian Express, Delhi Tribune, Mail Today, The Asian Age, Navbharat Times, Dainik Jagran, Punjab Kesari, Hindustan, Amar Ujala, Navodaya Times, Hamara Samaj, Pratap, Daur-e-Jadeed, Jathedar, Jan Ekta.

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