Ankit Sharma (owner) 18 November 2021
As per the central government guidelines and RTI reply as well as ruling by various high courts in India. CV-19 vaccine or any vaccine is voluntary but somehow various government departments like CRIS and Delhi government forcing the vaccine to the employees otherwise they are threatening them that they will get fired.
My question is:
How legal it is to force someone to take a medical procedure?
How one can counter that legally in court?
Kevin Moses Paul 22 November 2021
Sudhir Kumar, Advocate (Advocate) 12 January 2022
It is policy of the govt to make vaccination optional. Though the govt is empowered to make it compulsory.
Now as far as govt servant is concerned, govt can laid down guidelines. At the time of enrolment you are subjected to medical examination. You were free to refuse though could not be compelled. But govt could also not be compelled to appoint a candicate refusing medical examination.
Beofer appintment your fundamental rights were against abridged that without being a criminal police came to your house to very your whereabouts and antecedents. You never refused.
In LTC purpose also your fundamental rights are abridged as no LTC benefit is given to third child.
Many rights are abridged which you agreed at the time of joining:-
1. You cannot contest elections not even convass.
2. you cannot express views against govt policy.
3. you cannot marry a foreign national or even employee of foreign organisation.
4. you cannot without prior permission have financial transactions with someone with whom youhad official dealings.
5. you cannot choose your place of residence as you have to report for duty where you are posted.
6. You cannot join an NGO except your staff Association without prior permission.
7. You cannot without prior permission apply for other posts (even under private sector).
8. You cannot apply for passport without permission/information of department.
9. You cannot be drunk in public place (even if there is no prohibition order)
10. You cannot even visit an Embassy or High Commission. Cannot even join a cultural organisaion of foreign origin.
Although vaccination is optional, it is nothing illegal to record non-vaccination in APAR.
Megha 12 January 2022
Hi,
As per the FAQs released by the Ministry of Health and Family Welfare (MOHFW) COVID-19, vaccination is voluntary but taking the same is advised to protect oneself from the diseasse and also to stop the further spread of the deadly disease.
Several High Courts have ruled that linking employement to vacinnation is arbitary and also illegal. The High Court of Meghalaya in the case of Registrar General v State of Meghalaya, noted as follows:
"A notification/order of the State certainly cannot put an embargo and/or fetter on the fundamental right to life of an individual by stripping off his/her right to livelihood, except according to the procedure established by law. Even that procedure is required to be reasonable, just and fair ....... Till now, there has been no legal mandate whatsoever with regard to coercive or mandatory vaccination in general and the Covid19 vaccination drive in particular that can prohibit or take away the livelihood of a citizen on that ground."
Similar judgments were also passed by High Courts of Manipur and Tripura as well.
From the above, it is clear beyond any doubt that the vaccine is niether mandatory nor can the employer sack an employee for refusing to take the same.
However, as per a report in The Wire, the union government recently fired an Indian Air Force (IAF) employee for not taking the vaccine. The government, in its reply to the petition filed by the IAF, stated that the depsite the vaccine being voluntary, taking it was a service requirement of the IAF and thus not left to the personal descretion of the employee.
This conflicts begs the intervention of the position laid out in the Constitution of India - as the Fundamental Rights (FR) enshrined in Part III of the constitution, the right to help forms part of Right to Life enshrined in Article 21 of the constitution. The right to refuse a medication is also a FR and COVID-19 vaccine is a medication.
But we also know that FRs are not absolute in nature and subject to law and public order. Additionally, enjoyment of one's FR must not come in the way of enjoyment of another person's FR; the enjoyment must be consistent.
In Vincent Panikurlangara v. Union of India, the Supreme Court opined that the ‘right to maintenance and improvement of public health’ is included in the ‘right to live with human dignity enshrined under Article 21 of the Constitution. It held that a healthy body is the very foundation of all human activities and in a welfare state “maintenance and improvement of public health have to rank high amongst the State’s obligations, as these are indispensable to the very existence of the community.”
In light of the conflicting arguments on the issue of vaccination, while one can say that vaccination is an individual choice and not mandatory; prudence and logic suggests that taking it has far greater benefits than not taking it becasue in the end, individual health and well being prevails over everything.
Best regards,
Megha
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