COMPULSORY VACCINATION: AN ENCROACHMENT UPON RIGHT TO LIFE WHILE ENSURING PUBLIC WELFARE?
Abstract: To ensure people are safe even when unlocking begins, several states across the nation have decided to make vaccination mandatory. In other words, the orders issued by many states say that if people would not vaccinate themselves, they would not be allowed to resume their businesses. In light of the above scenario, the authors, through this article, attempt to analyze how making vaccination compulsory is a grave violation of the integral Fundamental Rights that are guaranteed by the Indian Constitution to every individual. Furthermore, the authors elaborate on how individual rights and personal interests need to be safeguarded at all times and must not be subservient to acts done by the State for Public Welfare or Public good.
Keywords – Vaccination, Public Welfare, Individual Interests.
As one deadly disease spreads throughout the world, immunization efforts in the form of vaccination have been taken by several nations to contour the novel coronavirus. Recently, states like Uttar Pradesh, Meghalaya and Gujarat have made vaccination mandatory for shopkeepers, taxi drivers etc. before resuming their businesses that have been a debatable issue for many since making it mandatory would be a hindrance to one’s right to life and liberty based on informed choice. On the other hand, it has been argued by the states that any legitimate act done in the interest of public safety and public welfare should be given the topmost priority. But the question that arises here is whether individual interests could be compromised for serving the public interest?
A tussle between Fundamental Rights and Public Welfare
There has always been a tussle between individual rights and public welfare. Can a state legitimately restrict the liberties of its citizens to achieve its end of serving the common good? If yes, then to what extent? All these have been questions of debate that furthermore, give rise to the need of striking a balance between individual rights and the public good. It has been well settled in a plethora of cases that wherever there is a question of Fundamental Rights involved, then it will be placed at a higher pedestal than the public interest.
Right to Refusal and Privacy
Right to Life under Article 21 of the Constitution of India also encompasses the Right to Health within its wide ambit as laid down in the case of Consumer Education and Research Centre v. Union of India. This essentially includes the right to health care also. But that does not pave the way for compulsory vaccination since making it mandatory would infringe the fundamental right to privacy, defeating the primary purpose of providing this health care service. The Apex court in the above judgement stated that in the context of health and medical care decisions, a person's exercise of self-determination and autonomy entails exercising his or her right to decide whether and to what extent he or she is willing to submit himself/herself to medical procedures and treatments, choosing among available alternative treatments or, for that matter, opting for no treatment at all, which, according to his or her own undivided attention, is in his or her best interests. Similar was the stance of the court in the case of Aruna Shaunbaug vs Union of India.
In the landmark case of Justice K.S. Puttaswamy (Retd.) v. Union of India, it was held by the Apex Court that the Right to Privacy guaranteed by Article 21 also includes Right to Personal Choice and Bodily Autonomy. However, the Right to Privacy is not an absolute right and may be subjected to restrictions. It encompasses three tests for validating breach of personal liberty. This includes 1) Existence of a Valid law 2) A Legitimate State Aim 3) Proportionality. In the current case, considering the unprecedented nature of COVID-19, this step taken by the government may pass the above test. However, using coercive means to vaccinate individuals would encroach upon an individual’s autonomous decision of not getting vaccinated.
The approach of Meghalaya High Court
In Registrar General, High Court of Meghalaya v. State of Meghalaya, the divisional bench of the Meghalaya High Court held that such coercive vaccination would infringe on an individual's right to choice and liberty if he or she chose not to get vaccinated. Therefore, making vaccination compulsory would lead to individual interests being at stake.
The above observations made by the court goes in accordance with the concept of self-ownership. This can be traced back to the judgment of Schloendroff v Society of New York Hospitals, where Justice Cardozo stated that “every human being of adult years and sound mind has a right to determine what shall be done with their body‟. This also goes in consonance with Mill’s theory of liberty that propounded for exercising an individual’s right until it infringes on another's right. The same is to be done by the welfare state following a balanced and rational approach, which in the current case of compulsory vaccination would prove to be excessive. Further, the court while referring to the case of Airedale NHS Trust v Bland, interestingly observed that the use of force or deception if an unwilling capable adult is forced to take the "flu vaccine," will be considered a crime as well as a tort or civil wrong.
The Meghalaya High Court also cited the cases of X v. Netherlands and X v. Austria to demonstrate that when a person's body is invaded, even if it is of minor intensity, such as through a needle, concerns about personal and bodily autonomy and integrity arise regardless of the consequences of such intrusion. The aforementioned observations seem to be in line with Robert Nozick's idea of a "minimal state" and the Kantian notion of autonomy. The above notions consider humans as an individual entity that should not be subjected to compulsions for the welfare of others.
Adopting a balanced approach vis-à-vis Public Welfare
However, there is still a very important question that remains unanswered. It is the threat of unvaccinated individuals to our society. To address this, one can refer to the Harm principle of JS Mill. According to the Harm Principle, a balance must be struck between individual liberty and the protection of the overall community. Mill propounded that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” The above theory has also been referred to in the case of KS Puttaswamy where the court stated that the “only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.” As a result, legal compulsion, according to this theory, is a pragmatic strategy to overcome reluctance and secure the greater public good. However, it is necessary to keep in mind that forced vaccination should not be confused with coercion and that authorities should take a balanced approach.
It is pertinent to note that a large amount of the population remains unvaccinated in India. However, the above approach cannot solve the problem. Making immunizations mandatory by coercion may be detrimental, as it will promote mistrust. Vaccine apprehension is already a serious problem, particularly in rural India; implementing coercive economic policies would further marginalise and punish those who are already misled. Instead, the focus should be shifted towards informed consent and voluntary vaccination. The aspect of human dignity, as envisioned by our Constitution, should always be the absolute threshold when balancing the objectives of public good and individual rights. This is the current case has to be done in accordance with Article 38 of the Indian Constitution by creating a one-to-one dialogue to showcase the positive aspects of the vaccine and simultaneously not to abrogate its duty under Article 47 of the Indian Constitution.
Therefore, the State must take on the task of raising awareness and educating the public on the benefits of immunization. It must place a greater emphasis on education and building public trust, rather than resorting to authoritarian actions that infringe on citizens' rights. Another approach to this problem can be the formulation of incentive programs and schemes. For example, in the United States, Massachusetts and Michigan have come up with the introduction of lotteries for residents getting vaccinated. In India, states like Arunachal Pradesh are giving 20 kgs of free rice for people to get vaccinated. Further, in Nashik, an MLA has announced incentives of 15 lakh to ensure 100 per cent vaccination of gram panchayats.
Making vaccination mandatory: An International Perspective
Talking from an international landscape, it is seen that compulsory vaccination has been upheld to preserve public health and safety. The first case dates back to 1905, where the American Supreme Court in the case of Jacobson v. Massachusetts, upheld a state law requiring adults to be vaccinated against Smallpox. In doing so, the Court ruled that to protect public health and safety, individuals' rights must give way to state police power. Furthermore, in the case of Jennifer Bridges et al. v. Houston Methodist Hospital et al., the U.S. District Court held that the employees of the Houston hospital have the option to refuse or accept the vaccination. If they refuse, they will be forced to resign from their position. Thus, the U.S. District Court's decision indirectly advocates for a mandatory and coercive vaccination policy by jeopardizing these employees' Right to Personal Choice, Bodily Autonomy, and Integrity by jeopardizing their Right to Livelihood in context of Article 21 of the Indian Constitution. The same has been upheld in the cases of Mc Carthy vs Boozman and Workman vs Mingo Country Board of Education. The legitimacy of mandatory vaccination has also been upheld by Brazil's Supreme Court. “Compulsory (but not forced) vaccination is constitutional,” the Court said.
However Indian Courts, while referring to the case of Jacobson, have interestingly taken the view to defend the personal liberty of an individual by warning against unjustified interference in the name of public health and safety. The above proposition has been laid down in the case of M.R. Venkataraman v. Commissioner of Police. Further, countries like the United Kingdom have legislations such as The Public Health (Control of Disease) Act 1984 which explicitly states under Section 45 that forcing people to undergo 'medical treatment,' which includes vaccination, is prohibited. This bar has also been replicated in the Coronavirus Act, 2020, for Northern Ireland and Scotland's health protection regulations.
Furthermore, talking from the perspective of the European Convention on Human Rights, the European Commission of Human Rights in the case of Acmanne and others vs Belgium has mentioned that a requirement to undergo medical treatment or vaccination under penalty may constitute an infringement on the right to privacy. The above proposition has also been reaffirmed in the case of Solomakhin vs Ukraine, where it was held that “compulsory vaccination – as an involuntary medical treatment – amounts to an interference with the right to respect for one’s private life, which includes a person’s physical and psychological integrity, as guaranteed by Article 8(1)”. Based on the above jurisprudence, it becomes essential for us to note that the above step by the government seems to be excessive and irrational. This in Indian context is because any obligation to administer vaccines is based on the notion that vaccine availability is guaranteed on an equitable basis for all. However the marginalised and vulnerable communities in India will experience greater difficulties in obtaining healthcare due to the existence of access disparity. As a result, a mandatory vaccination policy will exacerbate societal disparities and inequities, disproportionately affecting the poor and marginalised. Such steps would also go against the directions of the World Health Organization disapproving for mandatory vaccination.
While striking a balance between individual autonomy and public health is critical, such ethical conversations cannot take place when there are significant barriers to accessing healthcare and necessary information. With so many fears and uncertainties looming, using coercion to administer vaccines will only add to the panic and fail to increase vaccine uptake. As earlier mentioned, the state should create a one-to-one dialogue so as to showcase the positive aspects of the vaccine and simultaneously not to abrogate its duty under Article 47 of the Indian Constitution.
Moreover, even if such steps are to be considered, certain exceptions should necessarily be created to upload individual dignity and privacy. This can be observed from the Vaccination Act, 1853 of the United Kingdom which provided for compulsory vaccination of infants in case of smallpox. In 1898, a conscience clause was inserted, which allowed parents of children who were needed to be vaccinated to apply to a magistrate for an exemption by claiming a "conscientious objection." Over 200,000 certificates of conscientious objection had been issued by the end of 1898. Individual liberty and the public interest will be reconciled in this way. Thus, the current scenario demands for regulations that focus upon individual rights while considering public welfare and good simultaneously.
This piece has been authored by Harsh Khanchandani and Anshika Gubrele.
Harsh Khanchandani is a 3rd year BBA LLB(Hons.) student from Symbiosis Law School, Pune, India and
Anshika Gubrele is a 3rd year BA LLB(Hons.) student from Bharati Vidyapeeth (Deemed to be University), New Law College, Pune.
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