The COVID-19 pandemic has been raging across the world, shattering healthcare systems and bringing normal life to a standstill. While countries fight to diminish the life-threatening effects of the virus and undertake vaccination, the question of whether they can compel their citizens to undergo vaccination has arisen.
Public opinion on vaccines is heavily divided. That’s why discussions about compulsory vaccination are often based on fundamental rights arguments and tend to become heated.
Mandatory vaccination policies lead to concerns about the State infringing upon the fundamental rights of individual citizens. Governments across the world are put in a position where they must maintain a careful balance between public health interests and individual autonomy.
What is ‘Mandatory Vaccination’?
The term “mandatory vaccination” means to compel vaccination by direct or indirect threats of imposing restrictions. While speaking of indirect means, such practices can include charging fines or the restriction of certain (non-essential) services like social gatherings or attending a concert.
Despite its name, “mandatory vaccination” is not truly compulsory. According to WHO, force or threat involving general punishment cannot be used in the case of vaccination. Still, “mandatory vaccination” policies limit individual choice in many significant ways like attending school or working in particular industries.
Does The Right To Refuse Vaccination Even Exist?
Recently, the Madras High Court, while hearing a Public Interest Litigation (PIL - a legal action undertaken to secure public interest and demonstrate the availability of justice) regarding vaccination of individuals who are dealing with illness or serious health complications, proposed the question of whether individuals had the right to refuse the COVID-19 vaccine.
The High Court’s order states that: since the potential for people to remain asymptomatic carriers and infect others exist, in the interest of larger public health, the right to refuse may not exist. However, it would be illicit if states employ direct force to vaccinate individuals.
The Supreme Court of India had established that the “Right to life” also includes the “Right to refuse” medical treatment. While an individual may not actively try to end his life, they have the right to refuse any treatment which would lead to the same result. By logical extension, an individual must also have the right to refuse medical intervention, here in the form of vaccination, otherwise, their fundamental rights would be violated.
Compulsory COVID Vaccination Policies In India And Globally
All nation-states worldwide have a positive obligation to protect the lives and the health of their citizens. In India, ensuring public health is an important policy under Article 47 of the Constitution. According to the policy, the states must oversee the understanding between the well-being of the general public and the right to freedom. In other words, it must maintain a balance between human rights and public health rights in general.
Some countries have approved mandatory COVID-19 vaccination policies. Such policies usually do not obligate the use of direct, physical force. Instead, the governments endorse the vaccination indirectly, by actions leading to negative consequences. For instance, in case of refusal to get vaccinated, they impose fines, cease access to certain services such as attending school or returning to work.
Internationally, Italy has made it compulsory for healthcare workers to get vaccinated. Refusal to do so might lead to indefinite suspension and no pay. Likewise, England has such a policy in place for its healthcare workers as well. Even, France had been planning to introduce a mandatory vaccination law for its health workers too.
Meanwhile, Saudi Arabia has made vaccination mandatory for all private and public workers in order to return to their respective workplaces.
Perspectives on the legality of mandatory vaccination policies
While in some specific circumstances, these measures seem to be preventive rather than punitive, but there still can be countless arguments.
Indian states that have adopted mandatory vaccination policies for certain specific classes of individuals, and refusal to undertake vaccination completely bar them from carrying out their occupation, is totally unjustifiable.
The Union Ministry of Health and Family Welfare has declared that vaccination for COVID-19 is voluntary but advisable. However, some states such as Uttar Pradesh and Odisha, have made it mandatory for traders and vendors to get vaccinated before resuming business activities and even traveling. Assam, meanwhile, has mandated vaccination for all its government employees.
Meghalaya High Court navigates the matter to a conclusion
The Meghalaya High Court recently dealt with the probe for mandatory COVID vaccination while hearing a PIL. The case challenged the state government that mandated vaccination for shopkeepers, local vendors, and others, before allowing them to continue their businesses.
The High Court in defense said that mandatory vaccination did not find any force in law and hence, declared it to be “unattainable” or “beyond powers”. Observing Article 21, which included the right to health, and by extension, the right to vaccination, using coercive means to enforce it would violate the fundamental rights and defeat the very purpose of welfare.
The court passed the judgment:
“Right to and the welfare policy for vaccination can never affect a major fundamental right, especially when there exists no reasonable nexus between vaccination and prohibition of the continuance of occupation and/or profession. 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 (void)”.
Does Mandatory Vaccination Restrict Individual’s Right To Privacy?
In India, the “Right to life” is expressly guaranteed by Article 21 of the Constitution. The Supreme Court, in its landmark judgment in Justice K.S. Puttaswamy (Retd.) vs. Union of India, (2017), judicially constructed the right to privacy as part of the right to life.
The judgment clearly states that “decisional freedom is closely related to one’s personal choices”. By making vaccination policies mandatory, the state would violate the individual’s right to bodily privacy, personal integrity, and decisional independence as articulated in Puttaswamy.
The Epidemic Diseases Act (1897), confer extensive powers upon the government, which could enclose the ordering of compulsory COVID vaccinations.
But, the right to privacy is not absolute and may be subjected to certain restrictions. Observing the unprecedented nature of the COVID-19 pandemic and high fatalities, vaccinating individuals to control the spread of disease might qualify as a valid or legitimate aim.
So Yes. As long as “mandatory vaccination” is done for the welfare of the vast population of the country, IT DOES NOT VIOLATE BASIC HUMAN RIGHTS.
Indian courts have previously upheld cases of forced sterilization holding that even minor intrusions of the human body would violate fundamental rights.
The use of forceful means to make vaccinations mandatory may also lead to increased mistrust among the public. As it is, vaccine hesitancy is a familiar problem, especially in rural India. Hence, using coercive policies would lead to the further exclusion of such people who are in some way misinformed.
Instead, the State must emphasize informed consent and voluntary vaccination. It must assume the responsibility of informing the public on the benefits of undertaking vaccination. It must focus on public trust and not resort to dictatorial measures that impinge upon the rights of the citizens.