Rolling Series

Compulsory vaccination: an infringement of personal liberty and privacy?

The blog is authored by, Ujjwal Tripathi, and Stuti Joseph, third-year students of Law at Christ (Deemed to be University), Delhi NCR

Header Image Credits: Pexels Free Photo


ABSTRACT

In the year 2020, the world witnessed a global pandemic- Covid-19- that led to the death of millions of people and the world economy was on a pause. In this time of uncertainty, the Indian government started with the vaccination programmes in the early part of 2021 to develop antibodies in people against the virus by making the vaccination mandatory. Many restrictions were imposed on unvaccinated people, hence, posing a threat to their right to life.

The purpose of this research is to study the orders passed by different states and local authorities restricting the unvaccinated people from availing essential commodities and interfering with their fundamental rights. Further, the author attempts to determine the constitutionality of mandatory vaccination by analyzing recent High Court orders on Covid-19 vaccination. Lastly, the aim of the research is to identify current challenges in vaccinating the whole population of India and the ways to tackle those challenges.

Introduction

In the year 2020, the world witnessed a deadly disease named COVID-19 originated by the (SARS-CoV-2) virus. The virus originated in Wuhan, China in December 2019 and is present till date. World Health Organisation (WHO) soon declared it as a pandemic. Approximately, 246,070,236 have been infected by this virus and nearly 4,992,552 have lost their lives worldwide battling it. Soon after the outbreak, many giant medicine industries, as a preventive measure, got in a race to make a vaccine against the virus. Developed and Developing countries like United States, China, India, the United Kingdom, and Russia had started working on it.

India started its vaccination programme in January 2021. The priority was given to senior citizens who were more vulnerable to this deadly virus. Covishield and Covaxin are the two vaccines administered in India so far. Again by April 2021, second wave of Covid-19  started in India. Many political and religious reasons were given for such negligence. Alarmed by the second wave, the Indian government increased the pace of the vaccination campaign and prioritized its citizens. Attempts to vaccinate India’s eligible population were stepped up, despite various barriers like as vaccine shortages, logistics, and popular suspicion of vaccination.

To promote vaccination, the central government made it mandatory for the citizens to carry the vaccination certificate along with them whenever they travel by air or railways. Many malls and clubs denied entry to people who were unvaccinated. In many states people with complete vaccination certificate were given privilege to travel by air while people who were unvaccinated or partially vaccinated had to show their NegativeRTPCR report in order to board. Many writ petitions were filed against these guidelines of state governments labelling it as arbitrary and against citizens fundamental rights guaranteed under the Indian Constitution.

Restrictions upon unvaccinated people

Many arbitrary restrictions were imposed upon unvaccinated people which are as follows

  • Many districts and panchayats prohibited those people who were not vaccinated from receiving essential services such as rations. It was done in some districts of Madhya Pradesh as well as in Karnataka. The Office of the Assistant Director, Food, Civil Supplies and Consumer Affairs in Jammu & Kashmir issued (and then withdrew) an order making vaccination certificates essential for rationing in the Bandipora area.
  • The most common restriction has been orders prohibiting people from running their businesses or practicing their professions without getting vaccinated first. Many states, including Odisha, Uttar Pradesh, Madhya Pradesh, Meghalaya, and Mizoram have issued such orders.
  • Many orders relating to compulsory vaccination prevent people from entering public areas unless they have received at least one dose of the COVID-19 vaccine. The state of West Bengal made it illegal to enter public parks without a vaccination certificate. Rajasthan issued a similar restriction that applies to all public venues, while Kerala limited access to commercial centers.

The government claims the vaccination is voluntary but such orders in majority of Indian states coerce people to get compulsorily vaccinated and people in a fear of losing their livelihood and access to essential commodities have to stand in long lines for vaccination.

Legal framework

In India there is no specific provision that talks about mandatory vaccination. However Article 47 of the Indian constitution directs the State to improve the nutrition level and the living standard and to improve public health. Additionally, the Epidemics Disease Act, 1897 and the Disaster Management Act, 2005 permits the government to take extra steps in order to control the spread of an epidemic, thus, positioning the government at upper hand. But the forceful vaccination of people by making guidelines that violate citizen’s fundamental rights is not immunized by these laws.

Violation of privacy

Article 21 of the Indian constitution[1] states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Article 21, Right to Life has been widely interpreted by judiciary to include more than mere survival, existence, or animal existence. As a result, it encompasses all aspects of life that make a man’s existence more meaningful, complete, and worthwhile, and the Right to Privacy is one of them.

In Vincent v. Union of India, the Supreme Court held that a healthy body is the foundation of all human actions. As one of the basic tasks of the state, Article 47, a Directive Principle of State Policy, places emphasis on the improvement of general health and the refusal of dangerous pharmaceuticals. “Maintenance and improvement of public health have to rank high amongst the State’s obligations, as these are indispensable to the very existence of the community.” Further, in CESC Ltd. versus Subash Chandra Bose, the Supreme Court relied on international instruments and held that the Right to Health is a major right.

In this pandemic because scientists around the world have identified vaccinations as the sole long-term cure to COVID-19, the mandatory vaccine policy was developed with a valid State goal in mind i.e., to combat vaccine reluctance and protect people’s well-being. It was, however, denied on the basis that mandatory vaccines are administered involuntarily, and that the absence of consent and penetration into one’s body infringe on one’s fundamental Right to Privacy.

Right to Privacy and Right to Health both are the aspects of article 21 of the constitution. It is understood that Right to Privacy is not absolute and is subjected to certain restrictions. This debate between Right to Health and Right to Privacy is solved to some extent by the public and private theory of Aristotle. The public realm of political affairs and the personal sphere of human life were Aristotle’s divisions of society. The division between the public and private spheres established by Aristotle can be used to limit governmental authority to actions that fall only within the public realm. In the private realm, the person has more autonomy.

Further, according to KS Puttaswamy vs. Union of India, when an individual’s behaviour has a harmful influence on society, the state has the power to regulate that behaviour. A person who is not yet vaccinated returning to work puts everyone he comes into contact with at the danger of contracting the virus, infringing on other people’s right to have a healthy life. While an individual’s choice to refuse vaccination is unaffected, the State is justified in regulating an unvaccinated person’s relationship with society in order to defend the public’s right to life and health, also respecting the individual’s right to privacy.

Right to livelihood

The linkage of Covid vaccine with essential services makes unvaccinated people more vulnerable. These guidelines infringe the fundamental right of Right to Life, Right to Livelihood and the Right to carry on any trade, profession or business. Many writ petitions were filed in various high courts challenging such guidelines issued by different state governments. As per the Meghalaya High court, the state government’s decision making vaccination mandatory for shopkeepers, local vendors, cab drivers, and others, is a violation of the Right to Livelihood and the freedom to pursue a trade. The court went on to say that vaccinations cannot be made mandatory, especially when there is no rational link between vaccination and the prohibition of continuing to work or practice in the instance at hand.

However, In Olga Telis v. Bombay Municipal Corporation, the Supreme Court held that Article 21 rights might be limited by a legal procedure if the procedure is reasonable and fair. In the Puttaswamy case the court held that there shall be a three-fold requirement deciding for the breach of personal liberty. Which are (a) legality, i.e., a law must exist; (b) legitimate aim, and (c) proportionality of legitimate aims to the object intended to be achieved.

  1. Legality

In the present case, the mandatory Covid vaccination guidelines were carried out by the executive orders of state or local governments. In the case of Re Dinthar Incident Aizawl V. State of Mizoram and 11 Ors Aizawl, the Guwahati High Court dealt with the question of “whether the non-vaccination of the individual in question will debar him to practice any profession, or to carry on any occupation or trade or business under Article 19(1)(g)?” However, the court held that “keeping in mind the fundamental right of a person to practice any profession, or to carry on any occupation or trade or business under Article 19(1)(g) and his right to livelihood in terms of Article 21 of the Constitution. Though the State can make a law imposing reasonable restrictions in the exercise of any of the rights conferred under Article 19, so long as the said restriction is a reasonable restriction, no such law has been made by the Government and in any event, the above mentioned clauses do not appear to be reasonable”

  1. Legitimate Aim

The orders focussing on mandatory vaccination passes this test. The aim of the state and local governments is to vaccinate every individual and prevent the virus from spreading. By enacting this policy, the government intends to safeguard people in society from the risk of being infected by a virus transmitted by an unvaccinated person. As a result, the policy is in the ‘best interests of the general public,’ and it also provides a just and equitable basis for safeguarding societal health. As a result, the negative reinforcement it proposes, which is intended at safeguarding people’s lives and health, must be viewed as a “Reasonable Constraint” on the rights specified.

  1. Proportionality Test

It means there should be a rational connection between the objects and the means adopted to achieve them. Hence, the restrictions should be proportionate with the object that is sought to be achieved. In the present case, the benefits of vaccination cannot be justified by depriving people of their food and livelihood, hence state activities to vaccinate individuals in this manner are disproportionate. While forceful vaccination serves a broader public interest, it cannot be perpetuated in current form because it is not carried out in accordance to the principle of equity and under any recognized legislation.

The way forward

No scientific evidence is present to claim that those who have received the first dose of the coronavirus vaccine cannot become infected or spread the virus. There is no reason to discriminate against unvaccinated people and deprive them of their livelihood if both unvaccinated and vaccinated people with the first dosage must follow COVID-appropriate behaviour. Further, if the vaccination process is important in the long run then it shall not be carried out in a forceful manner by discriminating against the unvaccinated people.

The mandates for compulsory vaccination emerged at a time when the country was still experiencing a vaccine scarcity, particularly in remote and rural areas. Because the notion of equity is not fully accessible in this situation, punishing individuals by reducing their rations and salaries goes against the principle of equity. Rather than dying from Covid, the vulnerable section of the society would die likely because of the restrictions on essential commodities.

The government must act to not only provide vaccine access, but also to raise awareness about the benefits and drawbacks of vaccines, as well as to develop trust by rendering the vaccine approval process transparent. Coercive measures and unchecked authority will only result in ignorant consent and increased public distrust.


[1] INDIA CONST. art. 21.

Views expressed are personal.

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