- Once a sizable amount of the population in India got their COVID-19 jabs, a number of Government, as well as Private Agencies, issued circulars and notifications restricting the movement of Unvaccinated People.
- Epidemic Act, 1897 and Disaster Manager Act, 2005 provide the Government with the power to issue such circulars and restrictions, for controlling the spread of dangerous epidemic diseases.
- The High Court of Meghalaya has held 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.
- The Hon’ble Supreme Court has also observed that nobody can be forcefully vaccinated as it would lead to bodily intrusion and hence the violation of an individual’s right to privacy (protected under Article 21 of the Constitution of India).
India had begun its COVID-19 vaccination drive on January 16, 2021.The Central Government categorically stated that the vaccination was a voluntary exercise and it was not mandatory for anyone to get a shot. But, once the vaccination drive picked up the pace, and a sizable amount of the population got their jabs, a number of Government, as well as Private Agencies,issued circulars and notifications restricting the movement of Unvaccinated People. So, even though the Government did not mandate the people directly to get the COVID-19 vaccine, indirect steps were taken to increase the vaccine uptake. In this article, I will discuss the laws that allow such ‘indirect’mandates, along with some judgments of the Courts on this issue.
Law governing Vaccination in India
Section 2 of the Epidemic Diseases Act states that the State Government may take extraordinary measures to tackle an outbreak of a dangerous epidemic disease if it thinks that the ordinary provisions of the law are insufficient for the purpose.
Furthermore, Section 2A of the aforesaid Act states that the Central Government could also take extraordinary measures to tackle an outbreak of a dangerous epidemic.The Central Government could even prescribe regulations for the inspection of buses, trains, goods vehicles, ships, vessels, and aircrafts and order detention of any person intending to travel or arriving in those modes of transport.
So, the State, as well as the Central Government, have the power to take extraordinary measures, that may include restricting the movement of Unvaccinated People in public areas.
DISASTER MANAGEMENT ACT, 2005
Section 3 of the Disaster Management Act, 2005 (“DM Act”), provides provisions for the Establishment of the National Disaster Management Authority (“NDMA”). Section 6 of the aforesaid Act provides the provisions relating to the Power and Functions of NDMA. It provides that the NDMA could lay down policies on disaster management and could also take other measures for the prevention and mitigation of threatening disaster situations.
Furthermore, Section 14 of the DM Act provides provisions for the Establishment of a State Disaster Management Authority (“SDMA”). Section 18 provides provisions relating to the Power and functions of SDMA. It also provides that SDMA could lay down the State disaster management policy.
So, DM Act provides the Central as well as the State governments,the power to issue detailed guidelines to tackle disasters, including epidemics. This power could be exercised through National or State Disaster Management Authorities. Hence, the Governments could restrict the movement of people who might be a threat to public safety, by using these powers.
Important Case Laws on COVID-19 Vaccination
The State of Meghalaya had made it mandatory for the shopkeepers, vendors, local taxi drivers, etc. for getting vaccinated before they could resume their businesses. So, the primary question before the Hon’ble High Court of Meghalaya was whether the vaccination could be made mandatory.
The Court relied upon the judgment of the Hon’ble Supreme Court in the case of Olga Tellis & Ors. v. Bombay Municipal Corporation &Ors. [AIR 1986 SC 180] to observe that the right to life includes the right to the means of livelihood. It added that the rights of an individual must be balanced vis-à-vis the rights of the public.
The judgment in the case of Schloendroff v. Society of New York Hospitals [(1914) 211 NY 125] was also cited by the Hon’ble High Court of Meghalaya, where Justice Cardozo had observed that “Every Human Being of adult years and sound mind has a right to determine what shall be done with their body”.
The Court finally held 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.
In this case, the petitioner approached the Hon’ble Supreme Court seeking the Court to declare that vaccine mandates, in any manner whatsoever, even by way of making them a precondition for accessing any benefits or services, were a violation of the rights of citizens and are hence unconstitutional.
The Court began its judgment by noting that it could not be faulted that the vaccination drive, undertaken by the Government of India was in the interest of the public health.Then, it observed that nobody could be forcefully vaccinated as it would lead to bodily intrusion and hence the violation of an individual’s right to privacy (protected under Article 21 of the Constitution of India).
The Court relied upon the judgment in the case of Common Cause (A Registered Society) v. Union of India [(2018) 5 SCC 1]to observe that every individual has a right to choose how he lives his life. So, an individual could refuse unwanted medical treatment and he could not be forced to take any such treatment.
After putting forward these observations, the Court went on to deliberate upon the question that whether limitations placed on access to public places and public resources for vaccinated persons result in coercive vaccination.In this regard, the Court observed that if there is a likelihood that unvaccinated people are spreading the infection or contributing to the mutation of the virus, or burdening the public health infrastructure, then the Government could impose certain reasonable limitations on individual rights, proportionate to the objects of such limitations.
Ultimately, based on substantial material filed before the Court, it observed that the restrictions imposed upon vaccinated individuals through vaccine mandates could not be considered to be proportionate since both vaccinated and unvaccinated individuals were susceptible to transmission of the virus at similar levels.
But the Hon’ble Supreme Court refrained from passing any directions and only made suggestions to ‘all authorities’ in India that considering lower infection rate, they should review their orders imposing restrictions on unvaccinated individuals. The Court also categorically stated that in view of the rapidly-evolving COVID-19 situation, its suggestions would be limited to the present situation only, and they must not be construed as interfering with the power of the executive to take suitable measures in the future.
International Perspective on COVID-19 and Forced Vaccination
In the case of Roman Catholic Diocese v. Cuomo [141 S. Ct. 63 (2020)], the Supreme Court of the United States of America had observed that the members of the Court should respect the judgment of the public health experts as they were not experts in that field, but it added that the Constitution could not be put away and forgotten even in a pandemic. It added that the Court could not stay out of the way in times of crisis when the Constitution comes under attack.
In Kassam v. Hazzard [(2021) NSWSC 1320], the Supreme Court of New South Wales observed that it was not the Court’s function to determine the merits of the power exercised by a Minister. Furthermore, it observed that the Court could not conclusively determine the effectiveness of the COVID-19 vaccines, especially their capacity to inhibit the spread of the disease, as those are all matters of merit, policy, and fact. It concluded that the only function of the Court was to determine the legal validity of the orders passed by the Government.
In the case of Ryan Yardley v. Minister for Workplace Relations and Safety [(2022) NZHC 291], the High Court of New Zealand observed that the choices made by governments in their response to COVID-19 involved wide policy questions, including decisions on the use of border closures, lockdowns, vaccine mandates, etc. It clarified that the Court’s function was to address the narrower legal question and not the wider questions of policy. The Court further held that the curtailment of the right to refuse to undergo medical treatment, by indirectly mandating vaccination for a certain class of people, was disproportionate and unjustified.
It can be assertively stated that nobody can be directly forced to take a vaccine shot, as such an exercise violates the Fundamental Right of Life & Personal Liberty (Article 21) of such an individual.But whether the Government can compel a person to get vaccinated, is still a grey area. The reason is, that the government can issue directions restricting the access of unvaccinated people to the public spaces if those people are a threat to public safety. So, in such a scenario, even though there would be no direct mandate to get vaccinated, there would bean indirect push, as most people would not be able to live without occasionally stepping into public spaces. The Hon’ble Supreme Court, in its Jacob Puliyeljudgment,has termed such ‘indirect push’ to be a reasonable restriction on Individual Rights. Therefore, in my opinion, the Government can very much compel you to get vaccinated if the Safety of the Public demands so.