Mandatory Vaccination: Individual Freedom Of Choice v/s Public Health And Order
In a recent ruling, the Meghalaya High Court found that mandatory or coercive
vaccination has no legal foundation and should be deemed ultra vires ab initio.
The development occurred when the high court was reviewing a PIL concerning
orders issued by the state government requiring shopkeepers, vendors, local taxi
drivers, and others to get inoculated before they may resume their business.
Whether or not vaccination may be made obligatory, and whether or not such a
requirement would jeopardise a citizen's ability to earn a living, is a question
that needs to be examined. Vaccination is an imperative necessity in order to
combat the global pandemic that is overtaking our globe, and it must be
More than 3.85 million people have died as a result of the pandemic in India,
and the number is expected to rise. Families of many have been affected by these
tragedies, including the wealthy and the poor, professionals and
non-professionals, labourers, traders, and farmers. The covid-19 is not a
"once-in-a-lifetime tragedy"; it will continue to strike in waves, necessitating
a "broader approach" to combat this adversity.
However, the issue raised in the PIL requires a thorough examination of some
fundamental rules that govern the sector.
Article 21 reads as:
No person shall be deprived of his life or personal liberty except according to
a procedure established by law.
This right has long been considered the Constitution's heart, the most organic
and progressive clause in our living document.
The right to health is enshrined in Article 21 as a basic right. The right to
health care, which includes vaccination, is a fundamental right in the same way.
However, forcing vaccination or making it mandatory through forceful ways
defeats the exact objective of the welfare associated to it.
It violates fundamental rights, particularly when it comes to the right to a
means of living, which allows a person to live. The right to life, according to
Olga Tellis & Ors vs. Bombay Municipal Corporation & Ors (1985), includes the
right to a means of subsistence. Article 19(1) is directly affected by any state
action that is in complete violation of this fundamental principle . Despite the
fact that Article 19(6) calls for reasonable restrictions in the interest of
the general public, the current case is exemplary and distinguishable. It has a
much greater impact on an individual's right, choice, and liberty than it does
on the general public .The interests of the latter are jeopardised as a result
of an individual human being's autonomous decision not to be vaccinated.
It's more about finding the correct balance between an individual's right and
the public's right in general.
In line with Mill's notion of the liberty to exercise one's right until it
infringes on the right of another, the "welfare State" is aiming to protect the
rights of others, which, while justified, is plainly excessive due to the
Another essential question is whether a State Government or its authority can
issue any notification or order that is likely to have a direct impact on its
people' fundamental rights, particularly on a subject that involves both public
health and individual fundamental rights. The problem here fundamentally
revolves around the State Government's legislative power, which, despite being
granted under Entry 6, List II of the Seventh Schedule, must be in accordance
with an individual's fundamental right to life and livelihood.
The fundamental right to life of an individual cannot be encumbered or fettered
by a state notification or order. Taking away his or her right to a living,
unless he or she follows the legal procedure.
In response to a PIL, the Madras High Court voiced reservations about the 'right
to refuse' Covid-19 vaccination because its administration is in the public
"When such a larger public health interest is at stake, and it is possible that
a person who has not taken the vaccine may not show any symptoms but still be a
silent carrier," the Bench continued, "it is doubtful whether the right to
refuse to take the vaccine can be exercised in such circumstances."
The observation was made after the State revealed that there is apprehension
about the vaccine among the general public.
All students over the age of 18 must be vaccinated in order to appear for the
winter 2021 examination, according to an order issued by Gujarat Technological
Because the Union Ministry of Health and Family Welfare has previously decided
that vaccination is purely voluntary, the Gujarat Technological University's
circular should be considered illegal.
There's a good chance that more institutions will follow suit and employ similar
coercive methods. As a result, it's important to comprehend why mandated
vaccination is such a risky precedent to set.
Disparity in access
Any requirement to give vaccines is predicated on the assumption that vaccine
availability is guaranteed on an equitable basis for all. The reality, on the
other hand, is rather different. In most states, there are no slots available
for those between the ages of 18 and 45. Several state governments have offered
free immunisation for all people aged 18 to 45, while others have yet to do so.
In India, private hospital prices are also very high. Access to healthcare will
be more challenging for marginalised and vulnerable communities.
As a result, a mandatory vaccination programme will exacerbate societal
disparities and inequities, disproportionately affecting the poor and
marginalised. Many people may not get vaccinated through no fault of their own
due to the improbability of vaccine availability, such as students who may
suffer significant academic consequences if they are not allowed to take their
Individual autonomy and informed consent
When a person is competent to consent and it is informed consent, it becomes
legitimate. In medical law, the patient's informed consent is required for any
choice. Individual liberty and autonomy are protected in Article 21 of the
Indian Constitution as part of the right to life and personal liberty. Making
vaccination compulsory will thereby deprive them of their basic right to life.
Furthermore, by using coercion to force persons to be vaccinated, the state is
infringing on their right to decisional and bodily autonomy, as well as their
right to privacy (Justice K.S.Puttaswamy). There is a need to convey basic
information regarding vaccine dangers to patients or parents so that they may
make informed decisions; otherwise, there will be a lot of uncertainty.
The ability to make decisions about one's own body and life is basically
protected by the concept of "private life. As a result, health-related decisions
are also included. Medical treatment usually compromises one's bodily (and
potentially psychological or even moral) integrity, and therefore can only be
carried out with the permission of the individual concerned. However, there is
an external component to 'private life,' which includes relationships with other
people and the outer world.
The Madras High Court suggested that the state undertake public awareness
programmes and provide scientific facts to persuade people of the usefulness of
vaccines.It had stated that people should be able to make a "informed decision"
Risks associated with vaccines
Diseases are inevitable in life, but the present pandemic has had a greater
impact on our daily lives than in the past. Vaccination carries a risk of death
because it does not provide complete protection and can cause side effects as
well as vaccine-related deaths. This means that when it comes to vaccinations,
which interfere with an individual's bodily integrity, the right to life is only
impacted when potentially life-threatening conditions emerge.
In the case of allergies or other contraindications on the part of the person
concerned, such a threat posed by the immunisation is feasible. Infection may
endanger life, for example, in persons who belong to a high-risk category and
are unable to get inoculated. This includes persons who don't have a completely
functioning immune system, such as those who have chronic illnesses or severe
allergies, are undergoing chemotherapy, or are just too young or old to be
Conscientious demur to vaccination
Although the compatibility of mandatory vaccinations with religious attitudes
and convictions may not look clear at first glance but are more closely linked
than it may initially appear. This is due to the fact that some vaccines contain
components that are incompatible with particular religious systems.
Some vaccines, for example, contain porcine gelatin, which Jewish and Muslim
beliefs say should not be consumed. The fact that certain types of viral
vaccines require cell lines derived from aborted foetuses conflicts with certain
Christians' religious convictions. Several vaccines may contain animal
components or be tested on animals, which might present issues for vegetarians
Compulsory vaccinations, therefore, may infringe on the forum externum of
religious liberty. This isn't far-fetched, because in many instances, a person's
decision to get vaccinated or not has ramifications for society as a whole, and
so ethical considerations may play a role. If a person chooses not to be
vaccinated because of his or her conscience, the mandatory order infringes on
that person's right to act in line with his or her conscience. Mandatory
vaccination could jeopardise these safeguarded values. If there were fines for
not vaccinating, for example, this would effectively be a punishment for
following one's own principles.
For all of these reasons, it should be considered whether refusing to vaccinate
can be classified as a practise or rite, and thus be protected under Article 25
(freedom of conscience and free profession, practise, and propagation of
religion) of the Constitution.
There are several ambiguities and doubts about whether asserting one's basic
right through coercion will tend to abrogate another's equally important
fundamental right. The question also arises as to whether a basic right can be
imposed forcibly even if the beneficiary is not disposed to exercising it,
because if this is done, there is a risk of infringing on the fundamental right
to privacy and personal liberty. Furthermore, whether or not to subject one's
body to an intrusion, even if minimal, such as with a needle, raises problems of
personal and bodily autonomy and bodily integrity like abortion and
non-sterilization rights. or even sex reassignment surgery.
Several reasonable goals could be considered suitable in order to justify
mandatory vaccination. In addition to the "protection of others' rights and
freedoms," the "protection of one's own health" is, justifiably, extremely
important. Vaccines against diseases that are transmissible from one person to
another protect both the individual and society, health protection is effected
on both a personal and societal level.
Members of the United Nations and specialised international organisations agree
that the highest feasible vaccination coverage should be pursued. However,
because there is no unanimity on how to attain this goal, and the Court
believes that making vaccination a legal obligation raises sensitive ethical and
moral problems and the states should be given a broad range of discretion.
Certain important elements should be considered when assessing whether or not
compulsory vaccination is required like,the individual risk of the person in
question (i.e. probable contraindications) must be considered.Another key issue
to examine is the societal benefit derived from vaccine intervention and good
implementation. When a disease is spread from person to person, the health risk
extends beyond the individual and affects the entire community.
As a result, the order of mandatory vaccination should be proportional to the
dangers of side effects, vaccination-related damage, public health, and
The Court held that it is the State's responsibility to inform citizens about
the entire vaccination process, including its benefits and drawbacks, and to
facilitate informed decision-making, particularly in situations where the
beneficiaries are sceptical, susceptible, and belong to a vulnerable and
marginalized section of society, as well as ingenuous members of indigenous
The welfare nature of the state does not lie in coercive negative reinforcement
by seizing their right to livelihood and prohibiting them from working without
justification in the garb of public interest, but rather in concerted efforts to
effectuate a social order as mandated under Article 38 by approaching people
directly and engaging them in one-to-one dialogue ,court mentioned.
A careful and purposeful interpretation of the law, as well as the principles of
equity, good conscience, and justice, indicates that compelled or coercive
vaccination has no legal basis, making such acts ultra vires ab initio.
Mandatory vaccination efforts have been condemned by international organisations
such as the World Health Organization. While striking a balance between
individual autonomy and public health is critical, such ethical discussions are
impossible to have when there are significant barriers to healthcare and
knowledge. In the face of so many worries and uncertainties looming , compulsory
measures to give vaccines will merely add to the panic and fail to increase
vaccine uptake.It is the government's responsibility to raise knowledge and
correct misinformation about immunisation procedures in order to facilitate
Meghalaya high court was of the view that the strategy enacting any form of
behavioural change must be adaptive, which means that individuals must be mobilised and persuaded to witness the impact of the new intervention in order
for it to be accepted by the community. In their recommendations, the Principal
Secretary to the Government of Meghalaya's Health and Family Welfare Department
advises that the district orders should be viewed as a persuasive advisory
rather than a coercion on the topic of vaccination. At the same time,
vaccination accessibility is a state responsibility, and no citizen should be penalised if they fail to meet it.
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