Abstract
“Liberty consists in the freedom to do everything which injures no one else” Declaration of the
Rights of Man and of the Citizen
Vaccination has become a crucial part of many countries’ survival at this point of the time where pandemic has struck the world and wave by wave its coming back. The only scientifically capable weapon as of now we have to fight this types of the pandemic has always been the vaccines and hence the prime agenda many countries during this last two years had been only the introduction of immediate measures so that the number of the vaccinated people in the country increases .So emerges this question of vaccination and it restrain on personal liberty which appears to be no new and has been running till date. The paper here deals with the personal liberty in the context of public health and vaccinations.
Keywords: Health, Liberty, public, rights, vaccinations.
Mandatory vaccinations: a threat to personal liberty or not?
Introduction
“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” J.S. Mill
Vaccination has been and controversial topic in the past and has remained so till date. Adding to this existing issue comes the issue of compulsory vaccination where a lot of elements of personal rights come in. Right to chose and chose not to under go mandatory vaccination is the most critical one among the many aspects related and challenging to the hegemony of mandatory vaccination under the wider notion of right to liberty .Then there is the challenge of the public interest and the public health under the parental notion of the existence of the welfare state where the state has to keep in mind not just the interest of one individual but of many such individual and while doing so it’s difficult to satisfy the interest of each and every person or to cater the choice of every individual but repeatedly right to liberty and the right to privacy has been contended as the birth right of humans which are inalienable from them hence it becomes their choice to undergo or not in this mandatory vaccination programs.
If we see mandatory vaccination programs are no new, they have been in place from a many long time and every new outbreak brings is the same questions to the debate table hence it becomes important to evaluate the past precedence and reasons to better understand this debate and to make our own view.
RESEARCH METHODOLOGY:
A Doctrinal legal research has been conducted in the arena of mandatory vaccination and relevance of Personal liberty and privacy. this research is mostly based on the journals, legal websites content piece of work, research papers. And this research paper is covering the various concerned area of liberty and how it’s been threatened. And it is a mixture of both legal research with compilation of historical precedence which have proved to be crucial in this time.
REVIEW OF LITERATURE
Chinese physicians discovered a method of inoculation to lessen the effects of several ailments in the 17th century. The approach eventually extended to Europe and the Americas, where it progressed sophistically. As smallpox spread over the world, some authorities finally imposed this type of vaccine mandatorily, which involved a needle injection. General George Washington, for example, mandated that all troops be vaccinated against smallpox during the American Revolutionary War in 1777.
If one tries to see the origin of the term vaccination it derives from the Latin word vacca which means cow where a vaccine as the term was developed by Edward Jenner .The cow is related to origin of the term because the cowpox of the cow which was used to treat the smallpox which was quite of a prominent pandemic of the past and serious disease of the concern and thus the popularity of small pox vaccine grew and the trend of saying “cowpox for smallpox” took the nerves of people.
Part four of our constitution’s directive principle of state give path for the right to health which must be ensured by the state .Indian government through NHM and Indhradhansuh mission has promoted the need of vaccinations .Indian constitution mandates the state as the ‘welfare state’ to improve the quality of health of the people which we would discuss further.
Coming to the aspect of liberty which is related our topic, the origin of liberty may be traced back to the Latin word liberta. Liberty actually means an unrestricted freedom where a person can do whatever r he feel like doing but we know this form of liberty doesn’t exist and comes with restrictions in view of public interest .When it comes personal liberty Supreme court of India in the case of A.K Gopalan v State of Madras1Held that the term Liberty is very wide concept but the word before the word ‘liberty’ adds more rights to the person but at the same time restricts of some.In the same case its been stated that that personal liberty primarily means the primarily liberty of physical body`1
In Indian constitution the essence of the right to liberty could be contemplated in the article 19 and the right to personal liberty in article 21. Where article 21 states “No person shall be deprived of his life or personal liberty except according to procedure established by law.” 2 Where the procedure established by law has undergone a different meaning where in the case of A.K Gopalan v State of Madras it was said that the law that has been lawfully enacted is valid .It meant and said that if the law enacted by parliament consist of provisions for restricting of the liberty and the procedure of that law has been followed then it could be considered as valid. But this was overruled in the case of Maneka Gandhi vs UOI3 where the court held that the its not just the procedure established by law but also its necessary that the process is fair and just not arbitrary in nature.
Legal state of vaccination in India and Right to Health
Vaccination can be considered as crucial part of the right to health and according to the WHO It is the state’s legal responsibility to offer uniform access to health care and to deliver important medical variables that may be missed4that could be meant as vaccines and other portable healthcare devices or medicines.
1
1950 AIR 27
2Article 21 In Indian Constitution
3
1978 AIR 597 4
india
In India if we primarily see right to health is not explicitly given but its essence is present and ensured in multiple ways in India’s constitution where the primarily aim remains to be the promotion of health of the citizens. As discussed earlier Part IV of our constitution mentions that it’s the state responsibility to :
Promote the welfare of its own people5, safeguard the health of its citizen and children6Providing benefits in case of sickness or disablement7and Improving public health8.
Further in many Hon’ble Supreme court pronouncements such as in Bandhua Mukti Morcha vs Union Of India & Others9the court said the Right to Health falls under the scope of the word ‘Life’ in article 21.Further in Another supreme court judgement of Paschim Banga Khet Mazdoors amity vs State Of West Bengal it was held that the “It is the government’s responsibility to administer and offer proper medical care to its citizens, as well as to endeavor for the general welfare of the public.”
Despite of so much judicial and constitutional backing for the Union Government to ensure Right to health and introduce mandatorily vaccination it didn’t made vaccination mandatorily ,it was kindly noted in the Supreme court case of Evara Foundation vs UOI10 where the state in its affidavit produced before court said that “No person could be forcibly vaccinated against his consent” and said neither the Government has made vaccine certificate mandatory for any purpose.
But on ground realties we see multiple restriction existing at many different occasions which are kind of restricting the personal liberty of the people and coercing them towards vaccination.
Vaccination through Coercion
It has been seen and noted that governments and authorities at local level and on their own are initiating denial of public presence and services to people who haven’t vaccinated themselves.
Schools, colleges and universities had even made vaccination a perquisite for attending physical classes throughout the nation. Public transports systems of cities have limited their access to vaccinated people only.11Moreover at certain cities Non vaccinated people have been even denied basic ration and no fuel.12Many local government authorities have even introduced no vaccine no salary scheme. Many other state governments have moreover restricted access to public places to
5Article 38 of Indian constitution
6Article 39(e) of Indian Constitution
7Article 41 of Indian constitution
8Article 47 of Indian constitution
9
1984 AIR 802, 1984 SCR (2) 67 10 Civil writ petition No.580 of 2021 S.C 11 https://timesofindia.indiatimes.com/city/mumbai/state-to-reply-to-pil-on-ban-on-train-travel-for-non
vaxxed/articleshow/90211200.cms (Visited on 09 March 2022 9 PM) 12
in-aurangabad-4850306.html (Visited on 09 March 2022 10 PM)
only those who are vaccinated for. Eg Public Parks and grocery marts. Many state authorities
have even threatened local vendors with “No vaccine, No Business”13
This is the level of coercion going in our country. Which is indirectly (Implicitly) presenting forward to citizen to undergo the scheme of mandatorily vaccination in order to seek our basic livelihood need.
Legal Framework during Pandemic
In recent time the emergence of debate of mandatory vaccination raised from the current pandemic situation and the acts related to management of such pandemics. The Epidemic Disease Act of 1897 and the Disaster Management Act of 2005 allow the government to take drastic measures to restrict the spread of an epidemic. Since they give a sweeping range of powers to the government which empowers the to introduce such restrictions like travel restrictions.
The clash of Fundamental rights
The center point of this debate remains the article 21. Which states that the “No person shall be deprived of his life and liberty except according to the procedure established by law” Where we have already discussed above that how right to health is the intrinsic part of the life and thus indirectly becomes the fundamental right of the citizens ,thus making vaccination a crucial element to secure right to health which then contributes in further strengthening the public health of all individuals. Then there are the advocates of the personal liberty who want to resist any coercive attempt to make vaccination mandatorily.
Tracing the link of the debate of personal liberty and vaccination for better public health the most looked case is of the Jacobs V. Massachusetts14 Where the plaintiff in the case had claimed that “his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.”
And the court in rejecting his claim in its judgement said that
“the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly 13
https://www.barandbench.com/apprentice-lawyer/compulsory-vaccination-for-covid-19-in-india-a-legal
possibility-or-a-violation-of-fundamental-rights (Visited on 09 March 2022 10PM)
14
1905 SCC OnLine US SC 51 freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members.”
The court on liberty said that “Even the greatest of all rights, liberty, is not an unrestricted freedom to act according to one’s own desires. It is only freedom from restriction within conditions that are necessary for others to have the same right as you. As a result, liberty is governed by law.” In short court held mandatory vaccination valid.
Another aspect of the personal liberty is the Privacy which is also advocated to be threatened due mandatory vaccination .In the landmark case of K.S Puttaswamy vs UOI 15 Held that right to privacy which would be considered as the fundamental right which consist of “(i) intrusion with an individual’s physical body, (ii) informational privacy and (iii) privacy of choice” where individual’s Autonomy is of prime concern.
Thus, the intrusion of needle in one’s body without any consent or by through coerced mean and the lack of privacy of personal choice and less autonomy over decisions related to undergoing vaccination or not appears to create a threat of to right to privacy as explained in the above judgment.
Right to life and personal liberty also includes means which make such rights meaning full and dignified so the right to livelihood becomes an essential part of right to life and liberty. Even in Olga Tellis v. Bombay Municipal Corporation16 it was reiterated that Right to life includes the right to a means of subsistence, as decided in, reported at. In a case related to same aspect of Registrar General v. State of Meghalaya17 the court had reaffirmed that right to life is a fundamental right which consist of right to health .In this case the court had a problem Infront of it where the state local authorities had made it mandatorily for vaccination by coercion for shopkeepers, vendors, local taxi drivers and others to get themselves vaccinated before they can resume their businesses. Commenting upon the case scenario the court said that “It 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.” The court has also mentioned the mill’s theory of liberty which famously means that one can exercise his personal liberty until and unless it impinges the liberty of others. Another Harm principal of mill which states that “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” Court here says
in this scenario 15
2018 1 SCC 809 16
AIR 1986 SC 180
17
2021 SCC OnLine Megh 130 the “welfare State” is attempting to secure the rights of others, which – though legitimate – is palpably excessive owing to the procedure adopted by it” further said “ Till now, there has been no legal mandate whatsoever with regard to coercive or mandatory vaccination in general and the Covid19 vaccination drive in particular that can prohibit or take away the livelihood of a citizen on that ground.” The court had further referenced Schloendroff v. Society of New York Hospitals
18
where the court states that the “Every Human being of adult age should have right to determine what should happen with his body” Moreover medical ethics also talk about seeking the consent of the individual before any sort operation is conducted on the physical body of the patient and reaffirming the same the court said even if the intrusion of needle in could be considered minor it could bring in debates concerning the personal liberty and bodily autonomy of the concerned people. In Citing another western case of Airedale NHS Trust v. Bland reported [1993] A.C. 789 “If by use of force or through deception if an unwilling capable adult is made to have the ‘flu vaccine would be considered both a crime and tort or civil’ wrong”
To sum up the court said that the “welfare policy for vaccination can never affect a major fundamental right; i.e., right to life, personal liberty and livelihood, especially when there exists no reasonable nexus between vaccination and prohibition of continuance of occupation and/or profession. 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.”
In similar case of Re Dinthar Incident Aizawl Vs State of Mizoram 19Where the S.O.P released by government authorities were challenged which were prima facie discriminatory to the non vaccinated people and disadvantaged them from doing basic errands for basic needs. The court held that “restriction placed upon un-vaccinated persons only due to non-vaccination is unreasonable and arbitrary.” Further the court added that these S.O.P are “arbitrary and not in consonance with the provisions of Article 14,19 & 21 of the Constitution”
The court held in the Puttaswamy case that determining a breach of personal privacy which we have already discussed is essentially related to personal autonomy and personal liberty needs a three-step approach. These are (a) legality, or the presence of a law; (b) a valid aim; and (c) the proportionality of lawful objectives to the purpose sought.
• When arriving at the legality or the presence of law
We see that there exist no direct law empowering or mandating compulsory vaccination but there too exist laws which provide option for government to introduce such schemes including inoculation but see whether such directives remains valid or not could be said as there have 18
(1914) 211 NY 125
19
WP(C)/37/2020
been judicial pronouncement existing from both the side of the tale where one demands mandatory vaccination and one doesn’t but when it comes to existing explicit law the Meghalaya court in above mentioned case had said that “Till now, there has been no legal mandate whatsoever with regard to coercive or mandatory vaccination in general and the Covid19 vaccination drive in particular that can prohibit or take away the livelihood of a citizen on that ground.” And added that any attempt to restrict such rights could be brought down by law and not by through direct executive advisories or S.O.P.
- A valid aim
No doubt the government authorities have very reasonable valid aim in pursuing the greater public health of the society and its citizen the work affect. The aim of the government here to introduce mandatory vaccination in view of larger public interest could be considered as an general valid aim.
- Proportionality of lawful action and objective
The actions executed by the governments should be in proportionality of the actual aim the government wants to secure what it means according to Justice Chandrachud “There should be a rational nexus between the objects and the means adopted to achieve them” According
to Justice kaul “The extent of interference must be proportionate to its need”
In a Dr Jacob Puliyel v. Union of India20the court said that as far as the UOI is concerned it hasn’t made mandatory vaccination and added that “only if the vaccine mandate is not in proportion to personal liberty then the matter should be taken under judicial purview”21.
And depriving the non-vaccinated citizens from acquiring basic needs and to restricting their work for their livelihood doesn’t appear to be the right intended objective of the government actions to promote vaccination rather its depriving and threatening citizen’s from their right to Life and Liberty.
A divergent view.
In differing case of Sanil Narayanan vs The State of Kerala22 the court said “The State Government while formulating policies for repressing the pandemic was thinking in a broader
sense that is for the public at large and not just the interests of the individual.”
20 WP(C)/607/2021 21
https://blog.ipleaders.in/mandating-vaccines-correct-way-forward/#Contentions_of_the_petitioner (Visited 10
march 2022 6 PM) 22 2021 WP(C) NO. 21120 Kerala High court.
Further the court added that whenever an order is issued in the public interest, the fundamental rights guaranteed by Articles 19 and 21 are not violated, because under Article 19, reasonable restrictions can be imposed by law, and under Article 21, no one shall be deprived of his life or liberty except by a legally prescribed procedure.
In another divergent opinion in the case of Academic Resources Advancement Movement v. State of Tamil Nadu23 court in dismissing the PIL said that mandatory vaccination policy for the teachers to under go double dose of the vaccine is in view of larger public health and interest and is valid and going against it would threatened the life of thousands of students with whom the teachers would interact .
In Another case of Raghava Menon (Dr.) v. Health Inspector24 where the plaintiff was prosecuted by sub magistrate for not producing his daughter for vaccination of small pox ,where the district authorities had issued notice under the Madras Public health act 1939 for mandating vaccination of children for smallpox .The plaintiff here claimed that this notice was in violation of his fundamental right and also put forwarded his religious sentiments where he contended that the smallpox vaccine is made out of cow calf lymph and thus injecting the same vaccine in her daughter blood would disturb his religious belief and concise.
Professing one’s own religious ideologies comes under the wider spectrum of the personal liberty of an individual to profess or not.
The court said that “the system of vaccination even if it infringes the conscientious objection of the petitioner the State has authority to introduce legislation of this type in the interest of the people for the preservation of public health which is a part of the scheme of social welfare.”
And said that the article 25 of the Indian constitution which guarantees right to religion itself starts with the wording as “Subject to public order morality and health”25
CONCLUSION
Thus, there exist a lot of clutter and debate surrounding the execution of mandatory vaccination and it doesn’t seem to be one which is sending ever soon. There are reasons supporting each cause and then there is this noble intention of the state to act as welfare state and to enshrined its citizen with the best of the best way to protect its citizen’s health. The right to personal liberty has been an very sensitive interest and concern of the people in genera and has caused some brutal revolution and wars for the just cause of securing the same right .Hence a middle way must be made in and a popular balanced law regarding the mandatorily vaccination depending upon the intensity and the need of the situation should be introduced in the country as soon as
possible so that the degree of 23
W.P.No.24530 of 2021 Madras H.C
241972 SCC OnLine Ker 115 25 Article 25(1) of Indian constituion
divergent opinion in this case could be brought to certain degree of stability where even the authorities are aware of their limits and where the citizens are also aware of their rights and safeguard.
Name: -Prashant Shivaji Dound
University: National Law University, Nagpur