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Mandating Vaccines: Actually The Way Forward?

Abhishek Chakraborty
20 Nov 2021 1:54 PM GMT
Mandating Vaccines: Actually The Way Forward?

Recently, the Meghalaya High Court held the Meghalaya Government's order of mandating vaccinations for vendors, taxi drivers and other business as unconstitutional. Similar issues have arisen in Uttar Pradesh, Delhi and Odisha. The aforesaid mandatory orders have sparked the question of what must gain precedence – the government's duty to protect the health of its citizens by getting everyone vaccinated or an individual's right to privacy, liberty and bodily autonomy to choose whether or not to get vaccinated. These conflicting fundamental rights have to be harmoniously interpreted in order to arrive at a decision of constitutionality.

The right to health has been held to be a fundamental right under Article 21 of the Indian Constitution imposing an obligation on the State to maintain and improve public health. To tackle the current pandemic, vaccination has been considered to be a viable approach. This power of the State to make vaccinations compulsory is seen as unconstitutional by many because it violates their right to bodily autonomy, guaranteed as a part of fundamental right to privacy under Article 21. Coercing people to get vaccinated by making it mandatory takes away the person's choice related to his own body and thus impinges on this right.

The Meghalaya High Court had majorly relied on the Puttaswamy judgement to highlight mandatory vaccination as a violation of the fundamental right to privacy. One aspect of this fundamental right has been overlooked by the High Court – the fundamental right to privacy is not absolute. The State has been empowered by the Constitution to restrict certain rights of a person if the government believes that by curtailing such a right, it could legitimately pursue their aim for securing the collective interest of the society. The State has to be careful while restricting a person's right that the procedure of restriction should be fair and just, and that such restriction does not grossly impinge on his human rights. This means that if the government is to mandate vaccines, they cannot directly force anyone to get vaccinated; rather, there could be sanctions in place for people who choose not to get vaccinated, like denying them entry in places of public gathering. Further, it has to be made sure that such denial would not affect the person significantly. These steps are necessary to make sure that the restriction placed on people's right to choose is a reasonable one.

An additional concern regarding mandating vaccines being redundant since it does not prevent a person from being the carrier, and hence cannot stop the disease from spreading, is countered by the fact that vaccines significantly reduces the potency of the disease if a person were to come in contact with the virus. This would allow the government and hospitals to tackle an outbreak within a community much more efficiently. The number of people who would need the assistance of an intensive life support would drastically decrease and managing it with the limited resource and infrastructure available would be more feasible. Therefore, it could be argued that the government's actions in making vaccinations mandatory fall under their legitimate duty to protect the general public health. Many medical experts around the world are of the opinion that vaccinations are the only long-term solution to COVID-19.

Furthermore, there are statutory provisions that empower the State to take actions necessary for the maintenance of the public health – The Epidemic Diseases Act (EDA) and The National Disaster Management Act (NDM). The EDA enables the state government to take all necessary steps to prevent the spreading of a disease during an epidemic, in case the government is not satisfied that the current laws are adequate to deal with the crisis. Similarly, the NDM empowers the Central government to establish a National Disaster Management Authority which can form policies to handle and mitigate a disaster. It can call upon the central and state governments to assist in the management of the disaster. These two legislations enable the State to mandate vaccines among the citizens in the interest of managing the pandemic.

Since this issue of mandatory vaccination is relatively new to the Indian judiciary it would be beneficial to refer to other countries where this specific issue has been comparatively more discussed and the literature on it more extensive.

U.S. has had a strong position with regard to mandatory vaccinations since the early 19th century. The landmark cases of Jacobson and Zucht had settled that it was within the constitutional powers of the state to order mandatory vaccination. Even though no US jurisdiction has made vaccination of the general public mandatory, there are several instances where it is compulsory for employment in certain sectors like health and child care, both public and private, as well as in schools and universities. It is the general belief in the U.S. Constitution that the mandating of vaccinations in such places is a reasonable restriction on a person's right not to get vaccinated.

Interestingly, the government has not yet applied a blanket mandate for the general public. Instead, they have identified sectors where mandating of vaccinations is reasonable. It is important to note that in these sectors the people are offered religious or medical exemptions from mandatory vaccinations. In fact, the U.S. Equal Employment Opportunity Commission has gone on to say that employers can mandate their employees to be vaccinated, as long as they comply with these exemptions. Several states now offer religious exemption, while some even offer philosophical exemptions.

Canada's vaccination policy is in line with the policy in the U.S. Section 1 of the Canadian Charter of Rights and Freedom allows the government to impose reasonable restrictions on a person's right to liberty provided for in Section 7. The government's efforts in trying to deal with the pandemic by enforcing mandatory vaccines fall under a legitimate reason of curbing a person's freedom. The approach of battling the pandemic by getting everyone vaccinated has also been validated by the Ontario Council of Medical Officers of Health. Mandating vaccines in schools and universities and even certain workplaces have been held to be legal. Under this mandate, people will not be forced to receive vaccines, but their ability to participate in certain activities would be restricted, like going to a restaurant. Even with such restrictions, the people still have an option to achieve what it had set out to do, for example an unvaccinated student may be denied from physically attending the school, but he would have the option to attend the classes online. This might not be as convenient but this inconvenience does not amount to coercion. However, there are provisions of religious and medical exemptions to mandatory vaccinations in schools and workplaces.

The stance of the European Union is quite clear on the issue of mandatory vaccination. Several cases have arisen regarding this issue and the debate hinged on the interpretation of Article 8 of the European Convention on Human Rights (ECHR). Clause 1 of this article provides for the protection of a person's private and family right, which allows for the right to choose to not get vaccinated. However, clause 2 of the same article allows for the interference of such a right if it is in the interest of public health. This means that the government is allowed to interfere with the right of a person to not get vaccinated if it feels that it is in the interest of maintaining the public health to make vaccines compulsory for everybody. Such legitimate interference on a person's right has been upheld in the cases of Solomakhin, Boffa and Jehovah's Witnesses of Moscow. In the very recently decided case of Vavricka, the court held that a country's government is under an obligation to protect and maintain the life and health, and if it felt that the policy of mandatory vaccination was the means to do that by achieving herd immunity, they were very well within their powers to do so. The court maintained that forced vaccination would not amount to a legitimate interference on Article 8(1) of ECHR. If a person does not comply with the mandatory vaccination policy, the person may be fined or may be excluded from a social setting.

Australia's stance on the issue of mandatory vaccination is different – it is illegal. The Commonwealth of Australia Constitution Act under section51(xxiiiA) provides an express constitutional protection against mandatory vaccination. Only section 51 contains the provision for a list on which the Australian government is empowered to make laws. This section specifically precludes making of laws that would result in forced medication. However, the government has put some vaccine requirements in place. In certain sectors like health care, the residentialcare workers of aged people and quarantine workers are required to be vaccinated.

It is quite evident that wherever the government is empowered to impose a reasonable restriction on a person's right to choose to get vaccinated, it has done so. The Constitutions of the U.S., Canada and EU have provided for the protection of a person's right to choose and bodily autonomy. At the same time, there are provisions to restrict these rights if it helps in achieving the greater good of the society, like protecting the general public health. Australia does not impose these restrictions because there is no provision in their Constitution which would allow the government to legislate laws regarding forced vaccination. Even then, there are certain vaccine requirements in their health sector. This gives the impression that vaccines are an effective and desirable way of battling this pandemic.

Maintaining the public health is a positive duty of the government. For this reason, right to health is considered a fundamental right, and statutes like EDA and NDM have provisions which empower the State to take necessary steps to control the outbreak and spreading of diseases. Similarly, mandating vaccines would a step which is in line with the powers entrusted to the government for tackling this pandemic. The determining factor regarding the constitutionality of mandatory vaccination is whether such a mandate is a reasonable restriction on a person's fundamental right to choose, and the answer for the same seems to be a 'yes'.

Mandating vaccinations impinges on a person's right of choice and bodily autonomy, but it is a reasonable restriction in order to maintain the public health. This mandate has to be introduced and implemented very carefully and sensitively since there is a good chance that there might be resistance from the general public owing to concerns over constitutionality. It is to be kept in mind that under no circumstances is forcibly vaccinating someone acceptable and constitutional. There could be sanctions set up for people who do not comply to the mandate, like a fine or denial of entry to social places like restaurants, movies or other places of public gathering. Also, initially, the mandate should be introduced in places where vaccination is absolutely necessary (like in health care sectors) and where people would have access to alternatives, in case the unvaccinated people are denied entry into those place (like if unvaccinated students are denied entry into schools and universities, they would still be able to attend those classes online). This would ensure that the people who are strongly against mandatory vaccinations are not put into a difficult position. This would allow the people to get used to such a mandatory policy. Gradually, depending on the responsive of the public towards this policy, the mandate could envelope other sectors, like business, as well. It is also important to note that at any stage of the implementation of the policy, there should be provisions for exemptions, religious or otherwise, for people who need it. Even the countries with a strong mandate for vaccinations have provided for these exemptions.

If the implementation is done in a careful manner, there is light at the end of this pandemic tunnel just yet.

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