On January 3, when the Drug Controller General of India announced the approval of two Indian-made COVID-19 vaccines for use in the country, the Prime Minister lauded the achievement as a source of nationalist pride. Yet, for a surprisingly large amount of the population, a different emotion was evoked: paranoia.
Despite meticulous testing and several rounds of trials that show that the vaccine is safe, several people doubt it. Dinner tables across the country are engaged in debates about its efficacy. Within this crucible of incredulity, a crucial question emerges: when it comes to public health, how far should governments compel people to do what is good for others?
As a rule, vaccines are incredibly safe. Yet no medicine is free from risk. In large numbers, even the safest dose can generate a rare, extreme reaction in a few people. This raises a curious moral dilemma. The benefits of the vaccine are essentially two-fold. Aside from protecting the person from catching the infection, a massive campaign for widespread vaccination can result in ‘herd immunity’: the level of immunity at which a pandemic cannot restart within the population. Once a group achieves this threshold, the unvaccinated acquire the benefits of everyone’s immunity without any of the downside risk. The rational choice for any individual thus is to ardently promote the vaccination of other people without vaccinating themselves.
As a matter of legal policy, the State is expected to solve such collective action problems and find practical resolutions to the tension between individual rationality and the larger public good. How then should governments legislate their ‘vaccination policy’?
So far, there has been little debate and no jurisprudential guidance. The default position is that those most exposed to the disease must be vaccinated first. Health workers and travellers feature high on this list. Police and armed forces are expected to follow. For the rest, groups most vulnerable are considered preferred targets, such as people above a certain age category. Nevertheless, prickly questions remain. Should, for instance, the government make vaccination mandatory for working professionals who take public transport?
There is precedent for compulsory vaccination programs in India. Back in 1880, the British Government of India passed the Vaccination Act, followed by the Compulsory Vaccination Act in 1892, to combat the Smallpox epidemic. Non-vaccination without sufficient cause resulted in jail time. The last of these laws was repealed as late as 2001.
Still, Section 2 of the Epidemic Diseases Act of 1897 confers state governments with wide ranging executive authority to “take, or require or empower any person to take, such measurers and… prescribe such temporary regulations to be observed by the public or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease or the spread thereof”. The National Disaster Management Act of 2005 gives the national government similar draconian command. In the end, the Union is more likely to leave such policy decisions to the states. While public health is a Directive Principle of State Policy (Article 47), “Public Health and Sanitation” features in the State List (Item 6).
Citizens have at least two legal grounds to resist any attempts at mandatory vaccination. First, every individual has a right to life. This extends to the right to refuse medical treatment. In Aruna Shanbaug v Union of India, the Indian Supreme Court made a clear distinction between 'active' and 'passive' euthanasia. While an individual may not actively end his life, he may refuse medical treatment that has the same result.
Second, individuals may claim religious grounds. This argument is far weaker. Although the Constitution protects essential religious practices, such rights are “subject to public order, morality and health” (Article 25).
While these legal justifications remain untested in India, several American courts have in the past rejected constitutional challenges to compulsory vaccination programmes. Famously, in Jacobson v. Massachusetts, the American Supreme Court upheld a state law that required compulsory Smallpox vaccinations for adults. In doing so, the Court held that the individuals’ rights must yield to state police power in order to preserve public health and safety.
Should drastic action not be in contemplation, the government may well deploy softer measures to ensure compliance. The law that governs travel, the Passport Act, 1967, for instance, enables governments to refuse issuance of or otherwise restrict the use of passports for those unwilling to get vaccinated. There are countries in Africa, for instance, that may not be visited without a vaccination for yellow fever.
Other State measures may include restriction on access to public facilities. In certain western countries, for example, parents must acquire special permission for exempting their children from specified vaccination, otherwise they are forbidden from attending school.
Would these measures secure freedom of choice while preserving public health? It can be argued that home schooling is always an option, and thus vaccination is not mandatory. By the same measure though, income tax is voluntary, since we decide whether or not we generate any income.
Compulsory vaccination should not be necessary when there is voluntary action. Attempts at inoculation may still be made through a series of coercive nudges, reliable health advice, and peer pressure. In the end, when legislating, governments will have to decide where to draw the line in balancing the rights of the individual with that of the group. The pandemic continues to force vexing choices.
The author is a practicing lawyer at the Gurgaon based law firm N South, Advocates.