Creation of vaccine for COVID-19 was a moment of euphoria and pride. However, till today, to the dismay of all, neither have the vaccines become panacea, nor has the virus evanesced. The pandemic has affected human rights globally, be it India, Australia or Europe. One of these rights is the ‘right to choose to not be vaccinated.’ Amidst the fatal crisis, a large stratum of the society is willing to take the vaccine, but there is rising vaccine hesitancy with few people either not feeling the need to get vaccinated, or others not believing in its efficacy.
Nations across the world have, directly or indirectly, forced the vaccination drive, with many rights now contingent on vaccination. For instance, the right to travel has been restricted with people and states have introduced the idea of vaccine passports, allowing entry only upon vaccination, sometimes with only specific vaccines. These restrictions have even caused people to travel to neighbour countries in order to get the required jabs. Despite vaccination being advisory in India, right to work and right to wages or salary have also been curtailed. There is also discussion of making it an offence for the vaccine no-shows, making similar experiences of disadvantage and benefits more likely in the future.
In the past few months, various Indian courts have decided or gave dicta on compulsory vaccination. In the present piece, I seek to analyse the legality of compulsory vaccination by examining the exercise of balancing of public rights vis-à-vis individual rights by the judicial systems across nations, with a special focus on the Indian decisions.
I. Individual Rights’ Triumph
Recently, the Gujarat High Court (HC), heard a petition by an Indian Air Force (IAF) officer to quash a show-cause notice issued by IAF for him not getting vaccinated. He averred that “his consciousness does not allow to get vaccinated instead of using ayurvedic methods” and that as per Union of India’s response in a RTI application, vaccination is voluntary. HC directed the IAF to not take any coercive action against the officer and adjourned the proceedings until its final decision.
The Meghalaya HC, addressing vaccine hesitancy vis-à-vis compulsory vaccination, declared that executive orders mandating vaccination to resume business are “coercive in nature and spirit”. Though the court recognised that vaccination is “absolute necessity” to overcome the pandemic, yet it held that its compulsion violated Article 21.
This decision was based on the right to livelihood under right to life and personal liberty. The judgment has two important components – (i) equating right to livelihood’s contingency on vaccination as compulsory vaccination, and (ii) holding the measures of compulsory vaccination as “excessive”. The legal reasoning for the latter was that compulsory vaccination is not “reasonable, just and fair” and according to procedure laid down by law, as was required by the Supreme Court (SC) in Olga Tellis v BMC.
Further, the decision recognised that compulsory vaccination poses “a risk of running into infringing on the fundamental right to privacy and exercise of personal liberty”. Right to bodily integrity and autonomy were held as major components of right to privacy in the Puttaswamy v. UoI,as “decisional autonomy comprehends intimate personal choices”.
Referring to the Meghalaya HC’s decision, an Aizawl division bench of Guwahati HC passed a similar order, while disposing off a writ petition against compulsory vaccination. Taking a step further, it held compulsory vaccination to be violative of not only Article 21, but also Article 14 (right to equality) as it created an “unjustified, grossly unreasonable and arbitrary” classification between vaccinated and non-vaccinated people. Further, such policies by the State under Disaster Management Act, 2005 were also held unreasonable under the scope of Article 19(6).
II. Public Rights’ Triumph
The support for direct or indirect compulsory vaccination is found in right to health under Article 21 – vaccinating the full population is in public interest.
A division bench of the Madras HC, decided on a PIL regarding vaccination for persons homebound due to disabilities . The state submitted a report citing “an element of reluctance in some quarters to take the vaccine.” The Court, recognising the indispensable nature of vaccine in the pandemic, advised the state to take persuasive measures, while emphasizing on asymptomatic COVID and doubts on vaccine hesitancy in the larger interest of public health.
Referring to Jacobson v. Massachusetts, Justice Chandrachud recently noted that the government does need “room for free play in the joint” in such cases of public emergency as provided the same qualify the test of reasonableness and proportionality.
Scholars have also argued that governments have sufficient options to make vaccination compulsory. If not, the Centre may pass bills like The Public Health Bill, 2017 having provisions, inter alia, for mandatory vaccination in line with The Compulsory Vaccination Act, 1892. It is arguable that such actions are in consonance with the fact that fundamental rights are not absolute. For instance, right to move freely can be curtailed for public order as provided under Article 19(2) of the Constitution. Similarly, right to privacy was held to not be absolute in Puttaswamy case.
III. Balancing of rights
Though Indian courts have not dealt with the question of compulsory vaccination before, the central issue of balancing public rights vis-à-vis individual rights has been decided upon in different context. In such, there exist two choices – declare one of them superseding the other, or harmoniously balance the two.
Leaning towards the approach of balancing rather than a definite primacy to one, the SC in Mr X v. Hospital Y held that it is in public interest that the HIV status of a man is disclosed to his fiancée, prioritising right to health over his right to privacy. In Asha Ranjan v. State of Bihar, SC stated that scale of balance should tilt to public interest if it instils rule of law. In Avishek Goenka v. UoI, SC held that shaded glasses on vehicles can be banned as general public safety outweighs trivial individual privacy. It is evident that though proportional balancing of the two rights is the key, there is no constitutional clarity on its modus operandi. There are been multiple ways of balancing them – morality based, or public interest based – but they are best characterised as ad hoc decisions and the situations remains unclear.
Cross-jurisdictional opinions can be referred to for consideration. The European Court of Human Rights (ECHR) in Avilinka & Ors. v. Russia, a case involving right to privacy of Jehovah’s witnesses, held that even though abstinence to blood transfusion results in death, forced treatment is violative of physical integrity under Article 8 of the convention. A decade ago in Solomakhin v. Ukraine, ECHR held compulsory vaccination to be an interference with right to private life. Contrastingly, recently ECHR in Vavřička v. The Czech Republic held compulsory vaccination as necessary and not violative of human rights.
The US SC in Jacobson v. Massachusetts allowed compulsory small pox vaccination, with J. Marshall opining public health supersedes individual rights. In Zucht v. King US SC also held constitutional bar on non-vaccinated students in vires. Similarly in City of Newark v. JS, it was held that a tuberculosis patient can be admitted to hospitals against his will, provided it is the least restrictive measure. On the contrary, the New York Court of Appeals in Schoendorff v. Society of New York Hosp. held that one has right to determine what happen to one’s body in a medical procedure.
The contrary decisions of courts highlight the dilemma. Non-eternal and dwindling efficacy of vaccines against new variants make the advocacy for public interest even weaker. Vaccines being the only known inhibitor of deadly COVID weakens the case for individual rights. Thus, neither a blanket ban, nor a blanket approval for compulsory vaccination, is feasible.
A dynamic balance, with the present equilibrium being persuading people through awareness is required because belief curbs hesitancy. Incentives like doughnuts, lotteries, etc. are other ways. While formulating these policies, governments must ‘carefully account for constitutional rights’. Indian government should follow the communication strategy laid down by MoHFW and people should also contribute by building a collective sense of accountability.
Thus, it is best for the authorities to walk a tight rope between public interest and individual rights and push for persuasive vaccination to bring adaptive behavioural changes.