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CAN THE GOVERNMENT MAKE VACCINES MANDATORY

INTRODUCTION

Post the covid wave, there is significant situation improvement in India labourers have started returning to cities for work, many businesses, offices, schools etc have started to reopen and are gradually returning to normalcy. Though reopening is good for the economy as many people lost their work due to lockdowns introduced because of Covid-19 but still, there is a possibility that reopening may again result in the rise in Covid-19 cases. Governments across the world are taking steps to prevent another wave of Covid-19 and till now vaccines are found to be effective against Covid-19 because of this Governments are making efforts toward the vaccination of their people but still a large part of our population hasn’t taken the vaccine. So in this blog, we will see whether the Government can make vaccines mandatory for every citizen of the country?

LEGAL STATUS

Bhubaneshwar has claimed to be the first city to achieve 100% vaccination of its eligible population. Other states also are trying to achieve their vaccination targets and to do this they are even resorting to coercive or forceful vaccination. Though the Central Government in an affidavit filed on January 13 has said that “no person can be forced to be vaccinated against their wishes.”[1] Orders have been issued by many district administrations across the country using coercive methods towards vaccinating people.

Some common coercive methods used by the authorities in India to vaccinate people are:

  1. Restricted access to certain areas – Many district authorities have been restricting access to public places for people who aren’t vaccinated. Kerala has restricted entry to shopping malls. West Bengal has restricted entry to public parks.
  2. Monetary restrictions – Many states have threatened Government employees to withhold their salaries if they aren’t vaccinated. In some states, the administration issued orders to cut salaries of unvaccinated Government employees. Satna, Datia and Ujjain in Madhya Pradesh and Bareilly and Firozabad in Uttar Pradesh have taken similar steps. In a letter dated issued by office of district education officer, Tarn Tarn, Punjab it was stated, “This has reference to the meeting held by the Deputy Commissioner on 22-04-2021, regarding COVID vaccination and the instructions were issued and received by this office on the mandatory COVID vaccination of all the officers/ employees. It is clearly stated that if any officer/ employee is unwilling or refuses to be vaccinated, the concerned DEOs shall not draw the salary of such officers/ employees.”[2]
  3. Restrictions in accessing essential services – Many authorities have restricted access to essential services to vaccinated persons. The ration is only being given to people who have been vaccinated in many areas like Raisen in Madhya Pradesh. In the Bandiopara of Jammu & Kashmir, an order was issued by the authority making vaccination certificates mandatory for availing ration which was later revoked.[3]

Forceful vaccination is against the rights of citizens by refusing to ration a person’s right to livelihood is violated. In India, there are no specific legal provisions to allow mandatory vaccinations Article 47[4] further states that it is the duty of the state to improve public health. Though, the Disaster Management Act, 2005 and Epidemic Diseases Act, 1897 give broad powers to the Government to control an epidemic these forceful or mandatory vaccination are not immune to Judicial scrutiny. Recently, Meghalaya High Court in Registrar General v. the State of Meghalaya[5] held that “it impinges on the fundamental right(s) as such, especially when it affects the right to means of livelihood which makes it possible for a person to live.” The court further held that “it affects an individual’s right, choice and liberty significantly more than affecting the general public as such for the latter’s interests being at stake because of the autonomous decision of a human being of choosing not to be vaccinated.”

Many other High Courts like Gauhati High Court, Manipur High Court etc have further reiterated that restricting access to unvaccinated persons violates their rights. In Airedale NHS Trust v. Bland[6], Court held that “if an unwilling adult is made to have the flu vaccination through force, then it would amount to a crime and tort/ civil wrong.” Also, withholding salary or restricting access to ration because of not being vaccinated takes away an individual’s right do not give a rational choice to an individual. This further violates their autonomy to make a decision. Supreme Court in K.S. Puttaswamy v Union of India[7] recognised that the right to privacy not only includes a person’s rights to his/her physical body but also protects an individual’s autonomy over fundamental personal choices. Thus, mandatory vaccination order by many district administrations in the given circumstance does not find any force in law and further goes against the principle of equity.

CONCLUSION

Though vaccination is a necessary step towards our fight with Covid-19 but making vaccines mandatory isn’t the only solution as it takes away the rights of citizens as pointed out by the court in various judgements by different High Courts and Supreme Court. Rather than making vaccines compulsory or restricting salaries of Government employees, special incentives may be given, awareness should be spread to reduce vaccine hesitancy among people. Employers should make the safety and health of employees their priority spread awareness and organise vaccination camps at the workplace and ensure employees and their families get vaccinated.

Author(s) Name: Kunal Thawani (Hidayatullah National Law University, Raipur)

References:

[1] Ananthakrishnan G, ‘As India completes year of vaccination govt tells SC: No forced jabs, vaccine certificate not a must’ (Indian Express, 17 January 2022) < https://indianexpress.com/article/india/vaccination-sc-no-forced-jabs-certificate-7726757/> accessed 28 February 2022

[2] Anhad Law, ‘Mandatory vaccination of emplyees in India and recent devlopments’ (World Law Alliance, 4 August 2021) <https://worldlawalliance.com/mandatory-vaccination-of-employees-in-india-and-recent-developments/> accessed 28 February 2022

[3] Shreya Shrivastava, ‘Covid-19 and mandatory vaccination’ (Vidhi Legal Policy, 19 August 2021) <https://vidhilegalpolicy.in/blog/covid-19-and-mandatory-vaccination/> accessed 28  February 2022

[4] Constitution of India 1949 art. 49

[5] 2021 SCC OnLine Megh. 130

[6] [1993] AC 789

[7] (2017) 10 SCC 1