Author: Drishti Banerjee Student, Amity Law School, Kolkata
Making Vaccination Mandatory
Since the government announced the vaccination program towards the beginning of 2021, there has been a mixed reaction among the people regarding being vaccinated. Although the vaccines are totally safe, there remains a rare chance of adverse effects in some cases. This, along with opinions on social media and peer pressure has developed a sense of paranoia among the masses. Public opinion has also been shaped by public figures like Novak Djokovic refusing vaccination. A group called “anti-vaxxers” has emerged recently that refuse to take vaccines. Recent judgement passed by the Meghalaya High Court has infuriated the matter further.
Registrar General, High Court v. State of Meghalaya, 2021
The Meghalaya High Court failed to find any legal or constitutional basis to justify “mandatory and forceful vaccination”. The judgement came up after a PIL was filed against the State’s vaccination program for the vendors, shopkeepers, taxi drivers, etc. The government made it compulsory to be vaccinated and display the sign “VACCINATED” at a prominently conspicuous place to restart their business. There arose a twofold issue—
Whether vaccination can be made compulsory by the government
Whether compulsory vaccination violates the Right to Livelihood of the citizens under Article 19(1)(g).
The Bench that comprised of Chief Justice Biswanath Somadder stated that the Right to Health is a Fundamental Right under the purview of Right to Life under Article 21. Following the same analogy, the right to healthcare including the right to vaccination becomes a fundamental right. However, vaccination by resting to coercive measures “vitiates the very fundamental purpose of welfare attached to it”.
Coming to the second issue, the High Court stated that no State action can violate the fundamental Right to Livelihood. The Court further entrusted the burden of disseminating and sensitizing the citizens with the pros and cons of vaccination upon the State.
“The burden lies on the State to disseminate and sensitize the citizens of the entire exercise of vaccination with its pros and cons and facilitate informed decision making particularly in a situation where the beneficiaries are skeptical, susceptible and belonging to vulnerable/marginalised section of the society, some of whom are also gullible members of the indigenous communities who are constantly being fed with deliberate misinformation regarding the efficacy of vaccination by some persons/organisations with oblique motives.” (Meghalaya High Court)
It expressed concern regarding the skeptical marginalized sections which are “being fed with deliberate misinformation regarding the efficacy of vaccination…” The decision was left upon the people to avail the services of the vehicles without the “VACCINATED” tag.
Some religious factors, like ideologies of a fringe Christian group, have also a role to play in the vaccine hesitancy among the people of the Khasi and Jayantia Hills. However, further hearings of the case are supposed to take place,
Medical Consent and various instances around the world
In many instances in history, the authorities have exempted people from forced medication, respecting their personal choice or religious beliefs. However, covid-19 being a highly infectious disease, this choice is difficult to be given in its case.
A religious sect called the “Jehovah’s Witnesses” is antithetic to blood transfusion. Many authorities including the Government of Germany, Japan, the European Court of Human Rights, etc. ruled against the forcefully imposed medical treatment of blood transfusion contrary to the patient’s will, even if that could lead to his/her death.
The Public Health (Control of Disease) Act, 1984 of the United Kingdom forbids forceful medical treatment.
The concept of the “Conscience Clause” was imposed on the Vaccination Act, 1853 that gave a chance to the people to choose not to be vaccinated.
Recently, the citizens of the USA refused to wear masks as a preventive measure to check the spread of the virus, using the slogan, “MY BODY MY CHOICE”. The event, however, was politically influenced.
To check the spread of many infectious diseases, the governments have often imposed regulations on mandatory vaccination. For example, the Compulsory Vaccination Act of 1892 by the British Government.
During the smallpox epidemic, the Massachusetts law was enforced to empower the government to make vaccination mandatory for all. In the case of Jacobson v. Massachusetts, 1905, the USA Supreme Court declared vaccination to be mandatory during smallpox.
Private Right vs. Public Good
Injecting the vaccine into one’s body definitely falls under the Right to Privacy. The Apex Court in the landmark case of Aruna Shanbaug v. Union of India had made passive euthanasia permissible by the refusal of medical treatment. However, not being vaccinated implies more than voluntarily accepting the risk of getting infected by the disease. It puts others at risk of contaminating the disease from the non-vaccinated person. It serves as a probable hindrance to the development of herd immunity against the virus. The Constitutional Right to Privacy is not immune from reasonable restrictions. Public health is one of them. It was held in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 that fair, just and reasonable restrictions for a legitimate aim of the State can be imposed on Right to Privacy.
Power of the Indian Government to force Vaccination
Contrary to the previous arguments, the government indeed has the right to vaccinate its citizen as the matter involves public health concerns. Incidentally, public health falls under a Directive Principle of State Policy.
The Epidemic Diseases Act, 1897 gives the power to the states to take all measures necessary to check the outbreak and spread of epidemics. Given the situation, compulsory vaccination does not seem too excessive a use of such powers.
The covid pandemic has been recognized as a “disaster” under the National Disaster Management Act, 2005. Sections 6-10 along with section 62 of the Act grant power to the national authority. The said measure can be implemented under this Act.
Compulsory vaccination has been challenged on the ground of the Right to Freedom of Religion, stating religious beliefs to be the cause for not taking the vaccine. However, public order, morality and health (Article 25) are some of the reasonable restrictions on that right.
Instances Where The Government Has Made Vaccination Compulsory
In many cases, the government has imposed restrictions related to public employment and public welfare benefits.
“Article 21 encompasses within its fold, right to health, as a fundamental right. By that same analogy, right to healthcare, 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…,”(Meghalaya High Court)
For example, the government restricts the entry of residents from polio-infected countries without vaccination. This system is not unique to India and is practiced by many other countries like the USA. It is highly probable that international travel would become impossible without covid vaccination in the near future.
Along with the fear of and defiance from vaccination, vaccine nationalism has emerged as another new concept amidst the Covid-19 pandemic. While there is a competition worldwide to get vaccinated as soon as possible, high-income countries have purchased millions of doses of vaccines through bilateral agreements with pharmaceutical companies.
Therefore, the phenomenon of vaccine nationalism has emerged with wealthy States securing a large number of doses for their domestic vaccination programs. Thereby, the individuals of the low-income countries including the frontline workers remain unvaccinated.
The Director of the World Health Organization, Tedros Adhanom Ghebreyesus has described this phenomenon as a “catastrophic moral failure- which will be paid by lives and livelihoods in the world’s poorest countries”. Experts suggest that vaccine nationalism could lead to the pandemic being prolonged as the lower-income countries would take at least up to the end of 2023-24 to bring their inoculation programs to a desirable stage. Hoarding tendencies among the rich countries has brought about tragic consequences. There has been an unequal distribution of vaccines around the globe. This could lead to mutation of the coronavirus further, mutants becoming vaccine-resistant.
Vaccine Diplomacy: India and the Global Politics
Politics around vaccination and vaccine diplomacy remain the key factors for vaccine availability, especially in lower-income countries. The distribution policy is less dependent on the equity principle or any international obligation.
India has undertaken a different approach altogether under the concept of “vaccine nationalism”. While manufacturing many doses of vaccines domestically, it has been quite generous in distributing them to the neighboring countries. It has been termed as the “Neighborhood First” Policy. Critics of the present government suggest it to be an attempt to make up for the economic, social and organizational level failure during the initial days of the pandemic. This is described as India’s shift from the national to the global politics.
Major challenge before the country, therefore, lies in acquiring proper financial resources for the acquisition of vaccines and adopting proper methods of distribution. It is the duty of the State to undertake inoculation programs efficiently while taking special care while vaccinating the marginalized sections.
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