The article grapples with the question of whether the Central and State governments make vaccination compulsory without encroaching upon the fundamental right to life and personal liberty. To this effect, it deals with the conflicting opinions of the courts in this regard and how making vaccination mandatory infringes the fundamental rights of the individuals.
Vaccinating oneself against the COVID-19 is an absolute need of the hour. In a country that has experienced two deadly waves of the disease, with another one expected, vaccination of the population is essential in order to protect them from COVID-19. However, India’s vaccination drive has been lagging, with only 6.2% of the population fully vaccinated till now. While a major reason behind this is the lack of availability of vaccines, another factor that comes to play among India’s heavy rural population is the hesitancy of taking the vaccine and lack of trust arising out of limited access to information about the same. In light of this, a question that may arise is whether the Indian government can make vaccination against COVID-19 compulsory for all citizens of India? Can the state coerce people into taking the vaccine, where they do not wish to do so, or do the people have a right to say no? There is no straight answer to this, and recently two High Courts have presented conflicting perspectives, which form the starting point of the present discussion.
Two conflicting opinions
In late June 2021, the Meghalaya High Court delved into the question of whether the COVID-19 vaccine can be made mandatory. This was done in the context of the multiple orders of the State that mandated vaccination of shopkeepers, vendors, and taxi drivers as a condition for continuing with their business. The court balanced the welfare function of the state to maintain public health with the individual right to livelihood, which is a part of the right to life. The justification behind providing a fundamental right to health, and in extension, a right to vaccination to people is to fulfil the welfare purpose of the state. By coercing people to take the vaccination, this very element of welfare will be vitiated. Accordingly, the court held that while the state may take actions to disseminate information about the vaccination and encourage them to opt for the same, it cannot make it mandatory for anyone, least of all make it a compulsory condition affecting the right to livelihood of an individual. The Meghalaya High Court thus gives the individual’s right to life and personal liberty primacy over the right to vaccination and the welfare consideration underlying it.
A few days later, the Madras High Court laid down a different stance, by holding the “larger interest of public health” on a higher pedestal than individual autonomy. The case related to vaccination of homebound persons and persons with disabilities who could not leave their beds/homes, and the petitioner was seeking measures by the State to facilitate the same. The State had responded that adequate measures were being taken to vaccinate such persons, however, this was met with reluctance in some people towards vaccination. The court observed that vaccination is important not only to protect oneself but also public health, and in such a circumstance, it is “doubtful” whether a right to refuse the vaccine can exist. Once again, the state’s role in persuading people to get vaccinated was highlighted, but it is clear that according to the Madras High Court, there is no right to refuse the COVID-19 vaccine.
Therefore, while one court made the right to refuse the vaccine a possible reality, the other held its exercise to be doubtful.
Measures mandating compulsory vaccination
Though the Union Health Ministry maintained that vaccination was not mandatory, followed by the Health Minister also clarifying that no one could be forced to take the COVID-19 vaccine, there have been multiple incidents throughout the country involving such measures. In Odisha, traders, shopkeepers, and their workers, who had not vaccinated themselves were not allowed to resume business; Uttar Pradesh had a similar condition but for businessmen above 45 years of age; Delhi government had made vaccination compulsory for health care workers; Gujarat has also imposed mandatory vaccination as a condition on business owners, and Military personnel faced showcause notices and even termination for not getting vaccinated.
All such incidents bring us to the question: can the Indian government legally make vaccination compulsory?
Various methods allow the Central government to do so. These include the Epidemic Diseases Act, 1897, section 2A of which allows the Central government to impose temporary measures necessary to curb the spread of an epidemic. Section 62 of the National Disaster Management Act, 2005 allows the Central Government to issue directions to Ministries, State Governments, and any such statutory bodies to assist in disaster management, apart from setting up the National Disaster Management Authority to create such policies under sections 6 and 10. Compulsory vaccination can easily be a measure enforced by the central government under these provisions. Notably, no such statutory action has been taken by the Central government, which has not deterred states from taking matters into their own hands.
At this juncture, even though compulsory vaccination can be a statutory possibility at the hands of the Centre, we must look into the question of whether such a provision will encroach on the fundamental rights of the people or not.
Conflict with fundamental rights
The core dilemma surrounding compulsory vaccination is with respect to the balance required between the state’s interest and obligation to maintain public health and the individual’s right to life and personal liberty, which protects one’s autonomy. The age-old conflict of the welfare of the public versus private rights will come into play here.
With respect to safeguarding public health, the Supreme Court in Vincent Panikurlangara v. Union of India has held that a welfare state has the obligation to maintain conditions that are “congenial to good health”. In Bandhua Mukti Morcha v. Union of India, protection of health was considered to be an important aspect of the right to live with human dignity under Article 21. In Akhil Bharatiya Soshit Karamchari Sangh v. Union of India, the apex court observed that the duty of maintaining public health is “indispensable”, going as far as to say that it is a top priority of the state.
On the other hand, Article 21 protects personal autonomy, which cannot be interfered with. Personal autonomy means that individuals have the right to make independent decisions about their lives, as well as choose which activities they wish to be a part of or not. It allows a person sovereignty over their own body. The state’s duty is to safeguard individual autonomy rather than dictating the decisions of the individuals. Autonomy is associated with one’s private matters, including the domain of bodily integrity. Bodily integrity refers to one’s right to self-determination i.e. to be the only one to make decisions about their body. With respect to healthcare, this implies that a person gets to determine to what extent they wish to subject themselves to any medical procedure, and going forward with a treatment against an informed patient’s wishes violates his autonomy as well as bodily integrity. In fact, in Common Cause v. Union of India, it was observed that bodily integrity recognises the choice of a patient to even refuse medical treatment. Accordingly, the state cannot ordinarily interfere in certain core areas of an individual’s life, and health can certainly be considered one of such aspects. An individual’s rights under article 21 can only be curtailed by fair and reasonable procedure, through a law that has a legitimate state interest behind it and can pass the test of proportionality. This allows the state a limited scope to lay down a law intervening with individual autonomy.
An individual may decide not to get vaccinated because of multiple reasons. Every vaccine comes with its own risks, with some accompanied by extreme side effects. Another reason may find its root in the very belief of the person, based on their religion or conscience. Considering the vocal anti-vaxxer groups around the world, it is not difficult to believe the existence of such views in India too. In any case, taking a vaccination has an effect on one’s body, and may even leave an impact on their course of life, which means the ultimate choice to subject their body to a vaccine rests only with them.
This decision is significant because it affects not only the person who makes the choice but also others around them. Mass vaccination develops herd immunity and prevents or at least reduces the spread of the disease. Yet, the scope of personal autonomy and bodily integrity freely allows an individual to refuse vaccination. The only thing left to consider is whether the impact on public health will be so adverse as to tilt the balance of scales against the individual right to autonomy. Here, we go back to the Meghalaya High Court’s judgment, where the court made it clear that compulsory vaccination affects an individual’s right more than the general public. The court relied on cases such as Airedale v. Bland and X and Y v. the Netherlands to highlight the importance of personal autonomy which cannot be interfered with by a law mandating compulsory vaccination. This view holds weight because medical treatment in any form, including vaccination, can have an effect on one’s physical and psychological integrity, and should thus be carried out only with the consent of the person.
Additionally, making one’s livelihood dependent on vaccination also cannot be done by the state without infringing the right to carry on any occupation under Article 19(1)(g). Although article 19(6) allows imposition of reasonable restrictions in the interest of the general public, the Meghalaya High Court clarified that “the present instance is exemplary and distinguishable.” The test of reasonableness under Article 19(6) stipulates that a restriction should not be arbitrary and excessive, and must be considered in light of its underlying purpose and the prevailing conditions. Presently, making vaccination compulsory to reopen a business before ensuring an adequate and affordable supply of vaccines would excessively invade the rights of the business owners and the workers under article 19(1)(g). In times of economic uncertainty and financial hardship, such a legal obligation that would cause a negative impact on people’s livelihood cannot be considered reasonable in light of the purpose sought to be achieved.
Mandatory vaccination has to further go together with certain other considerations, such as sufficient supply of the vaccine, free access to it, adequate evidence of safety and efficacy of the vaccine as well as a public trust, and most of these factors are absent in India. In such circumstances, there can be a right to refuse the COVID-19 vaccine in India.
Another order to be noted in this regard is that of the Kohima Bench of Gauhati High Court, which put a stay on the Nagaland government’s order making COVID-19 vaccination of its employees mandatory. The Gauhati High Court had previously also held that unvaccinated persons cannot be discriminated against such that it violates article 14 of the Constitution – this implies that a person choosing not to get vaccinated will not face any disadvantage unless the classification between the vaccinated and unvaccinated is on a reasonable basis.
The central government has multiple statutory options to enact a law that makes vaccination against COVID-19 compulsory. However, such a law would go against the principles of autonomy and bodily integrity protected under Article 21. For the state to fulfil its obligations of sustaining public health, it must encourage the citizens by informing them of the benefits and low risks of the vaccine, as well as focus on making the vaccine available for the millions of people who are eager to get vaccinated. Once a certain threshold of vaccinations is reached, even unvaccinated people will gain benefits from herd immunity and ultimately reduce the risk of the spread of the disease. The state governments’ orders necessitating vaccination of business owners, traders, and their employees are not welcome in light of the ground reality i.e. lack of supply of vaccines as well as the underlying theoretical right to refuse the vaccine.
Anshika Chadha is a fourth-year student at the National Law University, Jodhpur.