Owing to the Covid-19 pandemic, healthcare systems the world over, have been overwhelmed and are under immense pressure. With countries struggling to mitigate the spread and effects of the virus, vaccination appears to be one of the most efficient tools against it. Consequently, Covid-19 vaccination has been on the horizon everywhere with many countries opting for a mandatory vaccination policy. Although, it is not uncommon for governments to mandate certain actions for a larger public good, there arise many ethical questions in the discourse. Can it be made compulsory? Is it legally justifiable? Or does it violate people’s rights? There seems to be a contradiction between the “Right to Health” and the “Right to Personal Choice and Bodily Autonomy”. Is it really so?
All these questions beg detailed analysis and answers. In the light of the High Courts of Madras and Meghalaya offering different directions on the question of mandatory COVID vaccination for citizens, it becomes important to analyse the constitutional validity of such policy. These questions should be considered alongside other relevant scientific, medical, and practical considerations by the Government.
What does it entail?
The term “mandatory vaccination” may not truly be mandatory i.e., “force or threat of criminal sanction may not be used in cases of non-compliance”. Such a policy basically limits individual choice and autonomy by indirect or direct means. They generally do so by making vaccinations a condition or a prerequisite, for example, for attending schools or colleges, or for resuming work or business etc. WHO in its policy brief on mandatory vaccination defined it as a policy which “compels vaccination by direct or indirect threats of imposing restrictions in cases of non-compliance. Typically, mandatory vaccination policies permit a limited number of exceptions recognized by legitimate authorities (e.g., medical contraindications)”[1].
Compulsory Vaccination policy in India
India being a “welfare state” has a positive obligation to protect the lives and the health of its citizens. Under “Article 47 of the Constitution”[2], which is a Directive Principle of State Policy, the State has the “duty to raise the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties”. It has the obligation to take measures and initiatives which protect and further the interests of the citizens. It has the responsibility of protecting people’s fundamental rights, and of maintaining the delicate balance between different rights (may be conflicting), in this case, between public health interests and individual autonomy.
This issue has been given enough thought and time by the courts of the nation. Recent judgements of the High Courts of Meghalaya and Madras merit detail discussion. On June 23, 2021, the High Court of Meghalaya, in “Registrar General, High Court of Meghalaya v. State of Meghalaya”[3], held that compulsory or forceful vaccination does not find any force in law, due to which such vaccination policy becomes unconstitutional since its inception, i.e. it is ultra vires-ab-initio.
In this case, the Deputy Commissioner had made vaccination mandatory for shopkeepers, vendors, local taxi drivers and others for them to resume their businesses. The Court dealt with two questions:
1) “Whether vaccination can at all be made mandatory? and,
2) Whether such mandatory action can adversely affect the right of a citizen to earn his/her livelihood?”
It is a settled law that “Article 21 which is a fundamental right”[4] encompasses the Right to Health. The Supreme Court in the case of “Consumer Education and Research Centre v. Union of India established the fact that the Right to Health is a fundamental right and is an integral part of the Right to Life under Article 21 of the Indian Constitution”[5]. It thus, logically follows that the Right to health care which includes vaccination comes within the fold of Article 21 of the Constitution. However, if such health care is provided through coercive means by making it mandatory (compulsory vaccination) or through deception, doesn’t it violate the very purpose of fundamental rights? Doesn’t it breach other fundamental rights or the rights of others?
The Meghalaya High Court took into consideration the case of “Olga Tellis & Ors vs. Bombay Municipal Corporation & Ors” [6], which held that the “right to life” includes the “right to means of livelihood” and “any action of the State which is in absolute derogation of this basic principle is squarely affected by Article 19(1)(g)”. Although Art. 19 has exceptions, the Court rightly observed that the “present instance is exemplary and clearly distinguishable”.
Compulsory vaccination encroaches upon people’s Right to Personal Choice and Bodily Autonomy and Integrity guaranteed as a part of the Right to Privacy, under Article 21. The Supreme Court, in its landmark judgment in “Justice K.S.Puttuswamy (Retd.) v. Union of India”[7], judicially constructed the right to privacy as part of the right to life. It rightly observed that “decisional autonomy comprehends intimate personal choices”, and recognized the right to bodily privacy. In “Schloendroff v Society of New York Hospitals”[8], Justice Cardozo ruled that “every human being of adult years and sound mind has a right to determine what shall be done with their body”. Another case which holds importance with regards to coercive procedure is the English case of “Airedale NHS Trust v. Bland”[9], where the Court held that “if an unwilling adult is made to have the flu vaccination through force, then it would amount to a crime and tort/civil wrong”.
Furthermore, the right to take decisions related to any intrusion to their bodily privacy rests with the person, however minor the intrusion may be. The same was illustrated in the cases of “X v. Netherlands”[10] and “X v. Austria”[11]. When a person is subjected to an intrusion of his/her body, even if of a minor intensity such as through a needle, there arise many questions and concerns related to bodily autonomy irrespective of the consequences. Such intrusions were held to be equivalent to non-sterilization rights and sex reassignment by the Meghalaya High Court and quite rightly so.
Despite the fact that the “Right to Privacy is not absolute” and there are reasonable restrictions to privacy as was held in Puttuswamy, the Judgement prescribed the test of three-fold requirement for the breach of personal liberty, that is:
(1) the existence of a valid law,
(2) a legitimate state aim, and
(3) proportionality.
With Covid-19 raging across nations and with high fatalities, vaccination is definitely the only viable option available to contain the virus, it is the only hope and thus would qualify as a legitimate state aim, if done lawfully. However, it is doubtful whether mandatory vaccination would qualify to be proportional. The question is also about proportionality.
In a similar stance taken by the Gauhati High Court, it was held that restrictions imposed by the Mizoram government on movement and work of persons who are unvaccinated for Covid-19 are unconstitutional and arbitrary. This judgement comes in the light of standard operating procedures (SOPs) issued on June 29 by the Mizoram government, restricting movement of unvaccinated persons. The Court studied the matter with reference to Article 14, 19 and Article 21 of the Constitution. The court further termed the provision “discriminatory and violative of Article 14” since it allowed even those who have been given the first dose of the vaccine to venture out and earn their livelihood but put those unvaccinated under house arrest virtually and thus, trampled upon their right to livelihood under Article 21.
The Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005
The High Court of Meghalaya as well as that of Guwahati concerned itself with the valid question as to whether a” State Government and/or its authority can issue any notification/order which is likely to have a direct effect on the fundamental rights of its citizens”. They made a reference to the provisions of the “Epidemic Diseases Act, 1987” and the “Disaster Management Act of 2005”.
“The issue here essentially centres around a question on the law-making power of the State Government, which, even though permitted by Entry 6, List II of the Seventh Schedule, has to be in consonance with the fundamental right to life and livelihood of an individual”, said the high court of Meghalaya.
In order to have a better understanding of the issue and the powers of the state authorities, it thus becomes important to look over the provisions of these Acts.
The “Epidemic Diseases Act, 1897, under Section 2A”[12] allows the Central Government to prescribe temporary “regulations”(in respect of travel through bus, train, goods vehicle, ship, vessel, aircraft leaving or arriving etc) to control the outbreak of “any dangerous epidemic disease” if it satisfied that the existing laws are insufficient to deal with such outbreak. Put simply; the Central Government has the right to direct compulsory vaccination to allow travel through the modes mentioned above. But what about the powers of the state government? The powers related to the state Governments under Section 2, do not grant such powers as to make vaccination mandatory. The powers under this Section pertain only to the “inspection” and segregation of infected persons.
Likewise, the “Disaster Management Act, 2005, (Sections 3 and 6 along with Sections 10 and 11)”[13] empowers the Central Government to establish the National Disaster Management Authority (NDMA) which is capable of “forming national and state-level plans and policies to control, manage and mitigate the disaster”. Also, under Section 62, the Central Government can issue directions to the Union Ministries, Departments, and State Governments for facilitation or assistance in disaster management.
It is worthy to note that the procedural and substantive aspects of the concerned notification/order are obscure or vague. Most importantly, the official website of the Ministry of Health and Family Welfare, Government of India, reads that the “Vaccination for COVID-19 is voluntary. However, it is advisable to receive the complete schedule of COVID-19 vaccine for protecting oneself against this disease”. The Central Government has always maintained that vaccination is entirely voluntary. This being the case, the state Governments seem to be going in a different direction.
Madras High Court: Does the right to refuse vaccination exist?
Having discussed the verdict of Meghalaya High Court and of Guwahati High Court on the constitutional validity of mandatory vaccination and the issue of the State government’ powers, the one which needs analysis now is that of a recent order of the Madras High Court[14]. The Madras high court was concerned with whether a person can refuse to get vaccinated as a matter of right, i.e., do they have a right to refuse vaccination.
It was a PIL regarding vaccination of individuals who are homebound or with serious disabilities. Unlike the stand taken by the High Courts of Meghalaya and Guwahati on the matter, the Madras High Court expressed reservations on persons refusing to vaccinate. The concern of the Court is legitimate in the sense that the only viable option available to contain this virus appears to be vaccination and people by refusing to vaccinate themselves may endanger the larger interest of public health. “Indeed, vaccinating oneself may not only be to protect oneself but also in the larger interest of public health. When such larger interest of public health comes into play and it is possible that a person who has not taken the vaccine may not reveal any symptoms but still be a silent carrier, it is doubtful whether the right to refuse to take the vaccine can be exercised in such circumstances,” opined the court.
Thus, a different stance has been advocated by the Madras High Court.
International Perspectives
As has been mentioned in the beginning of the article, many countries are battling the pandemic with mandatory vaccinations. The Covid-19 pandemic is undoubtedly the deadliest pandemic that the world has witnessed in years and requires extra ordinary measures to mitigate it. In India, the second wave in particular wreaked havoc in the nation. Witnessing such horrible conditions, one may incline towards making vaccinations compulsory and many countries have effectively done so.
For example, Australia has vaccine mandates for high-risk aged workers and employees in quarantine hotels and also for Paralympic athletes headed to Tokyo. England has such a policy in place for its healthcare workers as well. Inoculations were made compulsory in Indonesia in February with the capital Jakarta threatening fines of up to 5 million Rupiah. Italy has made it mandatory for healthcare workers, including pharmacists to get vaccinated, with refusal to do so leading to indefinite suspension without pay. Inoculations were made mandatory in many other countries like Djibouti as well.[15]
Given that many nations are opting for vaccination mandates, it is important to understand the perspectives of international courts on the legality of such mandates.
In “Solomakhin vs. Ukraine”[16], the European Court for Human Rights (ECHR) held that mandatory vaccination “amounts to an interference with the right to respect for one’s private life”. Also, the House of Lords in England, had held in its judgment in “Airedale NHS Trust vs. Bland”[17], [1993] AC 789, that even if a flu vaccine is administered by use of force or deception, it would be considered both a crime and a tort.
However, the European Court of Human Rights (ECtHR) case of “Vavřička and others v. The Czech Republic”[18]came as a dissenting voice in a series of judgements. Earlier this year, the Court held that the compulsory vaccination policy of the Czech Republic was valid and necessary in a democratic society. Also, in the U.S. case of “Jennifer Bridges et al. v. Houston Methodist Hospital et al.”[19], the U.S. District Court held that it is the choice of the employees of the Houston hospital to either refuse or accept the vaccination, and if they refuse they had to leave their job. This judgement indirectly advocates for mandatory vaccination for all practical aspects.
It follows from the above discussion that mandatory vaccination has been enforced and advocated for in different countries, albeit it violates people’s right to bodily autonomy and personal choice.
Conclusion
Considering that many countries are opting for mandatory vaccination, the media and the public in our nation are abuzz with the debate over whether vaccination should be made mandatory. Although the Courts of Meghalaya and Madras have given quite different directions on the topic, it is necessary to understand that such policies are capable of violating individuals’ right to personal choice and bodily autonomy and integrity. Even the Madras High Court implored the state government to try and persuade persons with awareness campaigns and scientific data. It is necessary to go for a persuasive method given that a considerable size of “anti-vax” population exists in India and other parts of the world.
It is also to be noted that much of the public discourse on vaccination has been centered around vaccine shortages, lack of infrastructure, logistics and equitable access to vaccines. This being the case, the Government can not afford mandating vaccination as it would go against the objectives of securing public health. It is through creating awareness, busting myths, educating the general public about the effects of vaccination and persuading them that the goal public health can be secured in this pandemic.
[1] World Health Organization. (2021). Covid-19 and mandatory vaccination: ethical considerations and caveats: policy brief, 13 April 2021. World Health Organization. https://apps.who.int/iris/handle/10665/340841. License: CC BY-NC-SA 3.0 IGO
[2] India Const. art. 47.
[3] https://images.assettype.com/barandbench/2021-06/b4d6bdcb-c603-4bde-9188-14f3953abbb4/Registrar_General_HC_of_Meghalaya_v__State_of_Meghalaya.pdf.
[4] India Const. art. 21.
[5] (1995) 3 SCC 42.
[6] (1985) 3 SCC 545.
[7] (2017) 10 SCC 1.
[8] (1914) 211 NY 125.
[9] (1993) 2 WLR 316.
[10] European Court of Human Rights (6852/74) – Commission (Plenary) – Decision – X. v. NETHERLANDS.
[11] (1 DE 1) X. v. Australia.
[12] Epidemic Diseases Act, 1897.
[13] Disaster Management Act, 2005.
[14] https://www.mhc.tn.gov.in/judis/madras-do/index.php/casestatus/viewpdf/WP_11850_2021_XXX_0_0_30062021_85_183.pdf.
[15] https://news.yahoo.com/factbox-countries-covid-19-vaccines-133945118.html.
[16] [2012] ECHR 24429/03.
[17] (1993) 2 WLR 316.
[19] 4:21-cv-01774.
Author: Vaibhavi S G from DNLU, MP.
Juris Centre 