On June 23, 2021, the High Court of Meghalaya, in Registrar General, High Court of Meghalaya v. State of Meghalaya, held that compulsory or forceful vaccination does not find any force in law, due to which such vaccination becomes unconstitutional since its inception.
The same is evident from the following: “[A] harmonious and purposive construction of the provisions of law and principles of equity, good conscience and justice reveals 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.”
This judgment comes in the light of specific orders being made by the Deputy Commissioners in Meghalaya that mandated vendors, local taxi drivers, shopkeepers, and others to get vaccinated before resuming their businesses.
In other words, this meant that if these people were not vaccinated, they could not resume their businesses. In this regard, the Meghalaya High Court lucidly held that the vaccination policy of a welfare State (like India) “…can never affect a major fundamental right, i.e., right to life, personal liberty and livelihood…”.
Similar situations of compulsory vaccination arose in Uttar Pradesh, Delhi, and Odisha, wherein vaccination was made mandatory for businesspersons, traders, and frontline health workers despite the Union Health Ministry clarifying: “Vaccination for COVID-19 is voluntary.” The same was reiterated by the Union Health Minister. Thus, considering this contradiction by the state Governments and the fact that mass skepticism exists for COVID-19 vaccines in various parts of India that the Meghalaya High Court also acknowledged, it is imperative to analyze the constitutional validity of such compulsory or forced vaccination.
The Epidemic Diseases Act, 1897 and the Disaster Management Act, 2005: Over and Above Right to Life?
According to Section 2A of the Epidemic Diseases Act, 1897, if the Central Government is satisfied that the existing laws are insufficient to deal with the outbreak of “any dangerous epidemic disease,” then they can prescribe temporary “regulations” to control such outbreak. However, these regulations can only be in the context of travel through bus, train, goods vehicle, ship, vessel, aircraft leaving or arriving, or aerodrome as the case may be.
This essentially means that it is possible for the Central Government to prescribe compulsory vaccination to allow travel through the modes mentioned above. However, for powers related under Section 2 for the state Governments, vaccination cannot be made mandatory as the powers under this Section pertain only to the “inspection” and segregation of infected persons. In this regard, the COVID-19 Rapid Antigen Test, RT-PCR Test, and Antibody Test already exist.
Thus, this essentially means that it is possible only for the Central Government to prescribe compulsory vaccination under the Epidemic Diseases Act, 1897.
According to Section 3 and 6 read with Section 10 and 11 of the Disaster Management Act, 2005, we lucidly comprehend that the Central Government is empowered to establish the National Disaster Management Authority (NDMA) who, in turn, is capable of forming national and state-level plans and policies to control, management, and mitigate the disaster.
Further, under Section 62, the Central Government can issue directions to the Union Ministries, Departments, and State Governments “to facilitate or assist in the disaster management.” This essentially means that it is possible for the Central Government to prescribe compulsory vaccination through the NDMA or its conduct via the issue of directions to the state Governments.
Thus, this essentially means that it is possible for the Central Government to prescribe compulsory vaccination under the Disaster Management Act, 2005.
Considering the laws mentioned above, it is quintessential for us to analyze whether such powers of the Central Government lead to the violation of Fundamental Rights. In Consumer Education and Research Centre v. Union of India, the Supreme Court held that the Right to Health is a fundamental right and is an integral part of the Right to Life under Article 21 of the Indian Constitution.
This essentially also means that the right to health care (vaccination) is included under the Right to Health. However, suppose such health care is provided through coercive means by making it mandatory (compulsory vaccination). In that case, the very fundamental purpose of this health care is defeated because it encroaches upon the Fundamental Right to Privacy.
This Fundamental Right is violated as individuals are deprived of their Right to Personal Choice and Bodily Autonomy and Integrity guaranteed as a part of the Right to Privacy, under Article 21, in Justice K. S. Puttaswamy (Retd.) v. Union of India. A similar stance was observed by the Meghalaya High Court as follows: “[I]t affects an individual’s right, choice, and liberty significantly more than affecting the general public as such or for that matter, the latter’s interests being at stake because of the autonomous decision of an individual human being of choosing not to be vaccinated.”
Further, when we apply Mill’s Theory of the liberty to exercise one’s right until it impinges on the right of another as done by the Meghalaya High Court, we comprehend that even if the Welfare State (India) attempts to secure the Right to Public Health of the public at large, the procedure of compulsory vaccination adopted by the State would be excessive as this procedure is coercive and impinges on the individuals’ Right to Privacy, Personal Choice, and Bodily Autonomy and Integrity.
In this regard of coercive procedure, it is also imperative for us to note that, in the English case of Airedale NHS Trust v. Bland, the 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. Same was relied upon by the Meghalaya High Court who further observed that: “[T]hus, coercive element of vaccination has, since the early phases of the initiation of vaccination as a preventive measure against several diseases, have been time and again not only discouraged but also consistently ruled against by the Courts for over more than a century.”
The Meghalaya High Court also relied on the cases of X v. Netherlands and X v. Austria to illustrate that when a person is subjected to an intrusion of their body, even if of a minor intensity such as through a needle, concerns regarding the issue of personal and bodily autonomy and integrity arise regardless of the consequences of such intrusion.
These intrusions that lead to such concerns, as mentioned above, were equated by the Meghalaya High Court on a similar footing of non-sterilization rights and sex reassignment. In other words, this essentially means that even minor intrusions on an unwilling person’s body are capable of violating their right to personal choice and bodily autonomy and integrity.
Therefore, in the present case, we comprehend that the Central Government must not prescribe compulsory vaccination under any statutory force as it is highly capable of violating individuals’ Fundamental Right to Life, i.e., Article 21.
More importantly, it is also noteworthy for us to mention that, in the present case, there is no official plan, direction, or regulation prescribed by the Central Government that makes vaccination compulsory at the state level. Instead, the Central Government has time and again adopted the stance that vaccination is entirely voluntary.
Despite the absence of such official instruction from the Central Government, the state Governments seem to be acting on a different tangent that violates the Fundamental Right to Life, Personal Choice and Bodily Autonomy and Integrity of the people.
International Perspective on Compulsory Vaccination
In recent times, multiple countries have made vaccination compulsory such as Russia. Further, in a European Court of Human Rights (ECtHR) case of Vavřička and others v. The Czech Republic, the Court held that the compulsory vaccination policy of the Czech Republic was valid and necessary in a democratic society.
Additionally, in a U.S. case of Jennifer Bridges et al. v. Houston Methodist Hospital et al., the U.S. District Court held that it is the choice of the employees of the Houston hospital to either refuse or accept the vaccination.
In case they refuse, they will be required to leave their job. Thus, this ruling of the U.S. District Court indirectly advocates for a compulsory and forceful vaccination policy as it violates these employees’ Right to Personal Choice and Bodily Autonomy and Integrity by jeopardizing their Right to Livelihood.
Considering that multiple countries are adopting a compulsory vaccination policy, it is imperative for us to note that such policy is capable of violating individuals’ right to personal choice and bodily autonomy and integrity, i.e., right to privacy, as a plethora of “anti-vax” followers exist in the U.K. and other parts of the world including India.
Rolling out a mandatory vaccination policy would violate these individuals’ right to personal choice and bodily autonomy and integrity. Apart from the violation of Fundamental Rights, we also comprehend that vaccine shortage exists in India and other countries due to which equitable access to vaccine becomes a significant conundrum.
It has also been found that it would take a minimum of four years to vaccinate the entire population of India with both doses. Thus, such a policy of compulsory vaccination would go against its objective of securing public health as it denies them equitable access and opportunity to vaccination by suddenly and exorbitantly increasing the demand for vaccines while its supplies remain low.
Conclusion: Is Compulsory Vaccination the Future Way Forward?
Although the Indian Government has a constitutional obligation under Article 47 of the Indian Constitution to maintain and improve public health, it is of quintessence importance to comprehend that compulsory vaccination would only lead to social disorder and disunity, thereby leading to a violation of Article 38 of the Indian Constitution, as individuals’ Fundamental Rights would be violated which would, in turn, cause mass chaos.
To prevent such a scenario, the Meghalaya High Court observed that it is the duty of the state Government and its authorities to engage in “one-to-one dialogues” and dwell on the efficiency and positive aspects of administering the vaccine.
In other words, therefore, there exists an obligation and duty on the State to create awareness and educating the society members on the urgent need for vaccination. Even though the Central Government has done the same through Union Health Ministry’s website, there is an ever-growing need for a direct intervention at a local level by the government and the vaccinated society members to create a sense of responsibility and accountability towards getting vaccinated.
(The author is third-year student at Symbiosis Law School, Hyderabad)