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In light of the High Courts of Madras and Meghalaya dealing with, and offering very different directions on, the question of mandatory COVID vaccination for citizens, POOJA SHREE A analyses Indian and European jurisprudence on the subject to examine the legality of compulsory COVID vaccination policies.
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THE COVID-19 pandemic has been raging across the world, overwhelming healthcare systems and bringing normal life to a standstill. While countries fight to mitigate the effects of the virus and undertake rapid vaccination, the question of whether states can compel their citizens to undergo vaccination has arisen.
Mandatory vaccination policies lead to concerns about the State impinging upon the fundamental rights of individual citizens. Governments are put in a position where they must maintain the delicate balance between public health interests and individual autonomy.
Recently, the Madras High Court, while hearing a public interest litigation (PIL) regarding vaccination of individuals who are homebound or with serious disabilities, opined on the question of whether individuals had the right to refuse the COVID-19 vaccine. The High Court's order notes that given the potential for people to remain asymptomatic carriers and infect others, and in the interest of larger public health, the right to refuse may not exist.
However, it would be unlawful for states to employ direct force to vaccinate individuals. In its judgment in the case of Aruna R. Shanbaug vs. Union of India & Ors., (2011) 4 SCC 454, 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 right to refuse treatment which would lead to the same result.
By logical extension, an individual must also have the right to refuse medical intervention in the form of vaccination, otherwise, their fundamental rights would be violated.
All nation-states have a positive obligation to protect the lives and the health of their citizens. In India too, ensuring public health is a Directive Principle of State Policy under Article 47 of the Constitution. States must navigate the tensions between public interest and individual freedom, and maintain the precarious balance between the human rights of the individual and the public health rights of the collective.
Some countries have adopted mandatory coronavirus vaccination policies. Such policies usually do not mandate the use of direct, physical force. Instead, the governments enforce the vaccination indirectly, through negative consequences in case of refusal such as by imposing fines, barring access to certain services such as attending school or making vaccination a compulsory condition for returning to work.
For example, Italy has made it mandatory for healthcare workers to get vaccinated, with refusal to do so leading to indefinite suspension without pay. England has such a policy in place for its healthcare workers as well, with France planning to introduce a mandatory vaccination law for its health workers too. Saudi Arabia, meanwhile, has made vaccination mandatory for all private and public workers in order to return to their respective workplaces. The African nation of Djibouti, on the other hand, has made vaccination mandatory for all of its adult population.
The Union Ministry of Health and Family Welfare has clarified 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. Similarly, Assam has mandated vaccination for all its government employees.
Most of the landmark European judgments in this regard have consistently held that by enforcing compulsory vaccinations, States undermine the notions of informed consent and privacy of the individual.
In England, the House of Lords, which was then the highest appeal court in England, had held in its judgment in Airedale NHS Trust vs. Bland, [1993] AC 789, that even if a flu vaccine is administered by use of force or deception, it would be considered unlawful and be both a crime and a tort. The individual must have the freedom to choose for themselves, the court declared.
In Solomakhin vs. Ukraine, [2012] ECHR 24429/03, the European Court for Human Rights (ECHR) held that compulsory vaccination as an involuntary medical treatment "amounts to an interference with the right to respect for one's private life".
Earlier this year, the ECHR, in Vavřička & Ors. vs. the Czech Republic, [2021] ECHR 116, held that the Czech Republic's compulsory vaccination program for children was "necessary in a democratic society" and did not violate human rights, including the right to respect for private and family life.
But even under the European Convention on Human Rights, compulsory vaccination strategies are lawful only if the repercussions of refusing vaccination are proportionate. In Vavřička, the individuals who refused to vaccinate their children were subjected to minimum fines and while the children were barred from attending nursery school, they were still allowed to join regular schools. Additionally, the vaccines in question are largely safe and have been in use for decades. In these specific circumstances, the measures were seen as preventive rather than punitive, and proportionate to the aim.
However, in the case of Indian states that have adopted mandatory vaccination policies for certain specific classes of individuals, refusal to undertake vaccination completely bars the individual from carrying out their occupation, which is unjustifiably disproportionate.
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) 10 SCC 1, judicially constructed the right to privacy as part of the right to life.
Justice D.Y. Chandrachud noted that "decisional autonomy comprehends intimate personal choices", and recognized the right to bodily privacy, that is privacy of the physical human body and the implicit right against others violating it in any manner. Justice R.F. Nariman observed that privacy "protects an individual's autonomy over fundamental personal choices" and highlighted its centrality to the notion of individual dignity.
By making vaccination policies mandatory, the state would violate the individual's right to bodily privacy, personal integrity, and decisional autonomy articulated in Puttaswamy.
The right to privacy is not absolute and may be subjected to certain restrictions. The apex court, in Puttaswamy, established a three-fold requirement for the breach of personal liberty, that is: the existence of a valid law, a legitimate state aim, and proportionality.
Given the unprecedented nature of the COVID-19 pandemic and high fatalities, vaccinating individuals to control the spread of disease would qualify as a legitimate state aim, as long as it is done lawfully.
The Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005 confer wide powers upon the government, which could encompass the ordering of compulsory COVID vaccinations. But would the State enforcing mandatory vaccination through coercive means be proportionate and constitutional?
The Meghalaya High Court recently dealt with the question for mandatory COVID vaccination while hearing a PIL challenging the orders of the state government that made such vaccination compulsory for shopkeepers, local vendors, and others, before they could continue their businesses.
The High Court held that mandatory vaccination did not find any force in law and declared it to be ultra vires ab initio. It observed that Article 21 included the right to health, and by extension the right to vaccination, but using coercive measures to enforce it would violate other fundamental rights and defeat the very purpose of welfare. The court observed:
"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. A harmonious and purposive construction of the provisions of law and principles of equity, good conscience, and 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".
It also relied on the ECHR's judgments in X & Ors. vs. Austria (53 ILM 64) and X vs. Netherlands (6852/74), and noted that any intrusion of an individual's body without their consent, regardless of its magnitude or consequences, would violate their bodily autonomy. Indian courts too, have previously upheld this principle in cases of forced sterilization and sex reassignment, holding that even minor intrusions of the human body would violate fundamental rights such as the right to personal integrity and autonomy.
Using coercive tools to make vaccinations mandatory may also be a counterproductive measure, as it would lead to increased mistrust. As it is, vaccine hesitancy is a very real problem, especially in rural India; using coercive economic policies would lead to the further exclusion and penalization of such people who are already misinformed.
Instead, the State must place emphasis on informed consent and voluntary vaccination. It must assume the responsibility of sensitizing and informing the public on the benefits of undertaking vaccination. It must focus on education and increasing public trust, and not resort to authoritarian measures that impinge upon the rights of the citizens.
Under the pretext of vaccination and public health, the State cannot use coercive means and violate individuals' fundamental right to privacy. In balancing the interests of public welfare and individual rights, the absolute threshold must always be the element of human dignity as envisioned by our Constitution.
(Pooja Shree A is a student at the Jindal Law School and an intern with The Leaflet. The views expressed are personal.)
