This Article is written by Divya K. (currently pursuing BBA LLB in Symbiosis Law School)
INTRODUCTION:
COVID- 19, a global pandemic hit the world in late 2019 and is still an ongoing pandemic in our lives. Many people have been affected by it and many have died. Markets, institutions, schools, and colleges, all were shut down as a preventive measure against this deadly virus. The only solution/ cure to this virus is vaccination. Therefore, the government started a vaccination drive and urged everyone to get two jabs of vaccine for their safety. People were facing issues in continuing their daily lives with no regular income. But few state governments like Uttar Pradesh, Odisha, and Delhi made the vaccination jabs compulsory for businesspersons and traders even though the Union Health Ministry clarified that covid-19 vaccination is voluntary and not mandatory. Now the question is whether these forced vaccination jabs by the state government are right and constitutional?
VIOLATION OF FUNDAMENTAL RIGHTS:
The policy of forced vaccination jabs has been argued as unconstitutional and violative of the right to life and right to privacy under article 21 and right to livelihood and right to trade or business guaranteed under Article 19 (1)(g) of the Indian Constitution. These mandatory orders of vaccination take away the individual’s right to make a decision/ right to choose whether he/she wants to take the vaccine or not. An individual has the right to decide what type of drug should go inside his/ her body. Article 21 under the Indian constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”.[1]The protection of life and personal liberty guaranteed under article 21 also includes the right to privacy, which was confirmed in Justice K.S. Puttaswamy (Retd.) v. Union of India[2]. In this case, the issue was whether the right to privacy was included under the constitution of India or not. The Supreme court’s nine-judge bench passed a landmark judgment and held that the right to privacy is included under article 21 of the constitution. The court stated that the right to privacy is an integral part guaranteed under the Part III of the constitution. The court with the help of this case iterated that the right to privacy not only includes the right to an individual’s physical body but also the right of individual’s autonomy over personal choices.
Article 19(1)(g) states that “All citizens shall have the right to practise any profession, or to carry on any occupation, trade or business.”[3]Few state governments have made it mandatory for the shopkeepers, vendors, taxi drivers, and others to get both the vaccination jabs before resuming their business. Urging the citizens to take the vaccination jabs in the view of engulfing the global pandemic is understandable. But coercing the citizens to the vaccinations jabs by making it mandatory clearly violates their right to life and liberty and right to practise trade or business.
CAN THE GOVERNMENT MAKE PROVISIONS FOR COMPULSORY VACCINATION?
The right to health also comes within the ambit of the right to life under article 21. Even though the constitution of India does not explicitly guarantee the right to health, there are various instances where it talks about public health. the Directive Principle State Policy provided in part IV of the Constitution of India indicates the basis for the right to health through article 39(e), article 42, and article 47. Article 39(e) directs the state to secure the health of the workers, men, and women. Article 42 directs the state to make such provisions that will secure just and humane conditions for work and maternity relief. Article 47 directs the state to elevate the level of nutrition and the standard of living and also to ameliorate public health. In Bandhua Mukti Morcha v. Union of India & Ors[4], the supreme court iterated that the right to health comes within the ambit of the right to life which is guaranteed under article 21. Similarly, in State of Punjab & Ors v Mohinder Singh Chawla[5], the court reiterated that the right to health is included under the fundamental right of right to life and that the government has the constitutional obligation to provide the public with health services. Basically, it can be said that the right to health care, i.e., vaccination, comes under the right to life.
The covid-19 being a global pandemic can be governed by two acts, Epidemic Diseases Act, 1897 and Disaster Management Act, 2005[6]. Section 2(A)[7] under the Epidemic disease Act, 1897 states that if the central government is satisfied that any part of India is threatened by the dangerous outbreak and the ordinary laws are insufficient to prevent the spread then it has the power to take any measures and regulations that are needed to prevent an outbreak or spread of such disease. However, this power is restricted to travel regulations like any ship or vessel arriving or leaving the port of India. Section 2 of the act empowers the state government to take such special measures and prescribe regulations that are necessary to curb the spread of the disease, provided it is just and reasonable. But even then, the state government cannot enact any rule or regulation that would violate the fundamental rights provided by the constitution. The Disaster Management Act, 2005 was enacted to empower the central government and state government to tackle disasters. According to section 2, “disaster means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes”.[8]the act empowers the government to enforce lockdown, restrict public movement and take measures which is necessary to prevent such disaster. Referring to these provisions it is clear that the central government can in times of necessity make vaccination compulsory.
THE WAY FORWARD: SOLUTION TO THE CURRENT ISSUE OF MANDATING VACCINATION
Although the right to health, i.e., essentially vaccination, comes within the ambit of the right to life, if the vaccination jabs are forced/ coerced then the very purpose of the fundamental right to health fails since it violates an individual’s right to bodily autonomy and personal choice guaranteed under article 21. In General Registrar, High Court of Meghalaya v. the State of Meghalaya[9], it was brought to the notice of the court that the state of Meghalaya through orders of deputy commissioner has made vaccination compulsory for the shopkeepers, vendors, local taxi drivers, and others if they want to resume their business. The court iterates that vaccination by force or by making it mandatory using coercive methods would debauch the very purpose of the welfare attached to the fundamental right. The court depended upon the judgment of Olga Tellis & Ors v. Bombay Municipal Corporation & Ors[10], which observed that right to life includes the right to means of livelihood, and any action taken in derogation of this basic principle would be affected by the article 19(1)(g). Mandatory vaccination affects the right of individual right to choose and liberty to get vaccinated. The court observes that the state government’s rule or notification in relation to the vaccination policy cannot fetter the fundamental right to life and livelihood of an individual. It stated that “A harmonious and purposive construction of the provisions of law and principles of equity, good conscience and justice reveals mandatory or forceful vaccination does not find any force in law leading to such acts being liable to be declared ultra vires ab initio”.
Vaccination is important for preventing the spread of covid-19 and still making it compulsory will vitiate the very purpose of why fundamental rights are provided to citizens. As a solution to this problem, Meghalaya high court suggested mobilizing and convincing the people of the medical disasters they will be exposed to and how vaccination would help in preventing such disasters. It is important that the government act as an advisory authority and not a coercion body. It also iterated that the requirement of vaccination should be a directory and not mandatory.
CONCLUSION:
Vaccination has been recognized as a valuable cure to covid-19. The governments are mobilizing vaccination drives to provide vaccination jabs to all the people in the country and to prevent the spread of covid-19. But the problem arises when the government uses coercive measures to get people vaccinated. The citizens of India are provided with the fundamental right to life and liberty which includes the right to privacy. Any rule or regulation with respect to vaccination cannot encroach upon the individual’s right to bodily autonomy. Mandatory vaccination also has adverse effects on the fundamental right of right to livelihood and the right to practice any trade or business. As suggested by Meghalaya high court, the possible solution to this problem is that the government should have one-one dialogues and stress more on the positive aspects of administering the vaccine.
[1]India Const. art 21.
[2] Justice K.S. Puttaswamy (Retd.) v Union of India, AIR 2017 SC 4161.
[3]India Const. art 19, cl. (1)(g).
[4] Bandhua Mukti Morcha v. Union of India & Ors, 1984 AIR 802.
[5] State of Punjab & Ors. v. Mohinder Singh Chawla, AIR 1997 SC 1225.
[6] Disaster Management Act, 2005, No. 53, Acts of Parliament, 2005, (India).
[7] Epidemic Disease Act, 1897, No. 3, § 2, cl A, Acts of Parliament, 1897, (India).
[8]Disaster Management Act, 2005, No. 53, § 2, Acts of Parliament, 2005, (India).
[9]General Registrar, High Court of Meghalaya v. the State of Meghalaya.
[10] Olga Tellis & Ors v. Bombay Municipal Corporation & Ors, 1986 AIR 180.
