At a time vaccine hesitancy poses a serious challenge to the ongoing Covid-19 vaccination programme in India, at least three high courts in the country have set off a much needed legal debate around the feasibility of State-mandated persuasive measures to boost inoculation rate.
The Meghalaya, Gauhati and Madras high courts have recently dealt with the issue of vaccine hesitancy while examining the state government’s sanctions to promote vaccination.
While the Meghalaya high court has declared that mandatory vaccination “by
At a time vaccine hesitancy poses a serious challenge to the ongoing Covid-19 vaccination programme in India, at least three high courts in the country have set off a much needed legal debate around the feasibility of State-mandated persuasive measures to boost inoculation rate.
The Meghalaya, Gauhati and Madras high courts have recently dealt with the issue of vaccine hesitancy while examining the state government’s sanctions to promote vaccination.
While the Meghalaya high court has declared that mandatory vaccination “by force” violates fundamental rights, the Madras high court has set about to examine whether a person can refuse to get vaccinated as a matter of right when he or she can prove to be a threat to public health. On the other hand, Gauhati high court has opined that any restriction on the right to earn livelihood of people who are yet to get vaccinated is unconstitutional.
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These orders by the three constitutional courts have touched upon the contours of the fundamental rights and the need to balance various rights of the people in the midst of a pandemic when dynamic situations are regulated by executive actions, which in turn are challenged before the courts citing violation of rights.
The court orders have paved way for a deliberation on whether states can come up with legally sustainable methods to persuade and encourage people to step out for inoculation, and the manner in which these sanctions can be imposed.
Vaccine hesitancy and a policy of choice
In 2015, the World Health Organization (WHO) defined vaccine hesitancy as a “delay in acceptance or refusal of vaccination despite the availability of vaccination services”. After 30% rise in measles cases worldwide were reported between 2010 and 2017, WHO declared vaccine hesitancy one of the ten biggest threats to global health.
WHO noted that immunisation for measles, a vaccine-preventable disease that was largely eliminated following widespread use of the measles-mumps-rubella (MMR) vaccine, had decreased to less than the 95% threshold set by the organisation as that required for herd immunity, leading to a surge in cases of measles.
Misinformation, lack of trust in safety and efficacy of the vaccine, fear of side-effects, socio-political notions combined with inconvenience of getting vaccinated and absence of incentives are considered chief reasons for vaccine hesitancy.
Under an FAQ (frequently asked questions) list uploaded by the Union ministry of health and family welfare on its official website, a question reads: “Is it mandatory to take the vaccine?”
The “potential response” to this question states: “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 and also to limit the spread of this disease to the close contacts including family members, friends, relatives and co-workers.”
Meghalaya high court disapproves coercion
Meghalaya government, through various orders of the deputy commissioners, had made it mandatory for shopkeepers, vendors, local taxi drivers and others to get themselves vaccinated before they can resume their businesses. This was challenged before the high court, which ruled against any policy that makes vaccination mandatory to exercise other fundamental rights.
The high court, in its judgment on June 23, underlined that vaccination is the need of the hour and that right to health care, which includes vaccination, is a fundamental right. “However, vaccination by force or being made mandatory by adopting coercive methods, vitiates the very fundamental purpose of the welfare attached to it. It impinges on the fundamental right(s) as such, especially when it affects the right to means of livelihood which makes it possible for a person to live,” held the court.
According to the court, mandatory vaccination affects an individual’s right, choice and liberty significantly more than affecting the general public, and impinges upon the autonomous decision of an individual human being of choosing not to be vaccinated.
Disapproving of “any compulsory vaccination drive that is coercive by its very nature and spirit,” it added that although the “welfare State” seems to be attempting to secure the rights of others, which – though legitimate – is palpably excessive owing to the procedure adopted by it.
“A harmonious and purposive construction of the provisions of law and principles of equity, good conscience and justice reveals that mandatory or forceful vaccination does not find any force in law leading to such acts being liable to be declared ultra vires ab initio...The welfare nature of the State is not for coercive negative reinforcement by seizing their right to livelihood but lies in walking together with concerted efforts attempting to effectuate a social order,” said the court.
It encouraged the state government to sensitise people in order to facilitate informed decision making particularly in a situation where the beneficiaries are skeptical, susceptible and belonging to vulnerable/marginalised section of the society.
About taxis, buses, shops and commercial establishments, the high court directed that that must display prominently at a conspicuous place, a sign “VACCINATED” or “NOT VACCINATED”, to inform the general public about the vaccination status of their employees and staff.
Gauhati high court underlines fundamental rights
In a judgment last week, the Aizwal bench of the Gauhati high court held that restrictions imposed by the Mizoram government on movement and work of persons who are yet to get vaccinated for Covid-19 are unconstitutional and arbitrary.
The high court was adjudicating a petition against standard operating procedures (SOPs) issued on June 29 by the Mizoram government, restricting movement of unvaccinated persons when the question of constitutionality of such sanctions came up.
The court scrutinised the state’s SOP on the anvils of Articles 14, 19 and 21 of the Constitution of India. Article 14 promises equality before law. Article 19 guarantees freedom of speech, the right to practice any profession and to move freely throughout India while Article 21 envisages protection of life and personal liberty.
It underlined that the SOP has virtually put those unvaccinated under house arrest in violation of Article 21 apart from trampling upon their right to earn livelihood. The court further termed the provision discriminatory and violative of Article 14 since it allows even those who have been given the first dose of the vaccine to venture out and earn their bread and butter but put those unvaccinated in shackles virtually.
“If vaccinated and unvaccinated persons can be infected by the covid virus and if they can both be spreaders of the virus, the restriction placed only upon the un-vaccinated persons, debarring them from earning their livelihood or leaving their houses to obtain essential items is unjustified, grossly unreasonable and arbitrary,” said the court.
A restriction cannot be arbitrary or of a nature that goes beyond the requirement of the interest of the general public, maintained the high court, adding even the disaster management law does not give any power to the state executive committee to issue executive instructions discriminating persons with regard to their right to liberty, livelihood and life and violating the fundamental rights of the citizens, which is protected by the Constitution.
The Gauhati high court cited the Meghalaya high court order that though vaccination is an absolute necessity, “a harmonious and purposive construction of the provisions of law and the principles of equity, good conscience and justice reveals mandatory or forceful vaccination does not find any force in law leading to such acts being liable to be declared ultra vires ab initio.”
Madras high court bats for public health
As the Madras high court heard a case relating to vaccination of persons with disabilities, particularly persons who are homebound, the Tamil Nadu government reported about vaccine hesitancy. The state said that there is an element of reluctance in some quarters to take the vaccine.
The court expressed reservations if a person can refuse to get inoculated at the expense of others. “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,” said the court.
The court left the matter for a detailed examination at an appropriate stage while it implored the state government to try and persuade persons with awareness campaigns and scientific data to indicate the efficacy of the vaccines and the indispensable nature thereof in dealing with the present pandemic
Legal precedents on compulsory vaccination
There are no direct judgments of the Supreme Court (SC) on the aspect of mandatory vaccination. However, some international judgments pertaining to right to bodily autonomy, informed consent and the right to self-determination may provide some guidance.
107 years ago, in Schloendroff Vs Society of New York Hospitals reported in 1914, 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”. This judgment is still cited to underscore the principles of informed consent and why a bodily trespass could be a civil and a criminal wrong. The issue arose before the New York Court of Appeals after a surgeon performed an operation without his patient’s consent.
In O’Brien Vs Cunard SS Co (1891), a woman failed in her claim for trespass against a doctor who injected her with smallpox vaccine on a ship bound for Boston. The court held that the woman had stood in line for the vaccination, offered her arm to the doctor and made no complaint when he injected her. Her behaviour indicated consent and the doctor was right to proceed.
In Airedale NHS Trust v Bland (1993), a United States court had held that if an unwilling capable adult is made to have the flu vaccine by use of force or through deception, it would be considered both a crime and tort or civil wrong.
A nine-judge SC bench, while declaring privacy as a fundamental right in 2017, had granted legal recognition to the right to self-determination and bodily integrity. Earlier in 2014, a smaller bench had also propelled the idea of self-determination and self-identification when it granted legal recognition to transgenders as “third gender” as a mandate of social justice.
On the sanctions that the State can impose on the exercise of fundamental rights, SC has, in a body of judgments, by its constitution benches, laid down that right to life includes right to the means of livelihood and to practice occupation of one’s choice without any restriction on movement. Any action of the State which is in absolute derogation of this basic principle will have to be tested whether such prohibitions are reasonable restrictions or not, besides being procedurally and legally sustainable.
Former attorney general and senior advocate Mukul Rohatgi favoured the idea of making vaccination compulsory. “This has been an epidemic that has claimed hundreds of thousands of lives. This is not a question of somebody deciding not to take medicines or get a surgery done. One person’s decision not to take vaccine can affect hundreds of others which in turn can affect thousands more, who will have no remedies because the disease is contagious. So, it is not that only you will suffer. You will make hundreds of others suffer too. We cannot lose sight of their right to health and life,” said Rohatgi.
The former top law officer said that the government should begin with “mild sanctions” along with sensitisation to persuade people. “Government should come up with mild sanctions to boost vaccination. The issues of self-determination and bodily integrity etc are for all normal times. These are not normal times, besides hundreds of others cannot be made to suffer because of decision of one person. That’s not how the State can protect the lives of its people,” added Rohatgi.
He also disapproved of giving any incentives to people for jabs. “What can a bigger incentive than the government giving it to you free so that your life can be saved? I don’t think any other incentive is required,” said Rohatgi.
Former solicitor general and senior advocate Mohan Parasaran said that it is within the authority of the Centre and states to make vaccination compulsory since the Constitution arms them with the status of parens patriae (parents of the nation).
“In the larger public interest, vaccination can be made compulsory since those not vaccinated are threats to others’ rights to life. Right to self-determination or bodily autonomy are aspects of right to privacy which is inferior to the right of life of other people,” emphasised Parasaran.
He added that a legislative route will be a preferred method of making vaccination mandatory as executive orders may not pass the test of legality and proportionality. “Although Meghalaya high court has taken a different view, I am certain Madras high court will adopt a correct position by saying that people cannot refuse vaccination,” said Parasaran.
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