Image description: A child holding up a board reading ‘back to school vaccinations’. There is an older man standing in the background.
COVID-19 has brought the world to a stand-still for a significant part of the last two years. While countries are pushing hard to complete the biggest vaccination campaign globally, vaccine refusal poses another threat. Countries like India are trying to increase vaccine intake by imposing coercive vaccination sanctions such as withholding salary and restricting access to public places for unvaccinated individuals. A question arises as to whether the government can force individuals to undergo vaccination even though it might infringe the rights to refuse medical treatment and bodily autonomy. I argue that the government can.
Waiver of rights
Article 21 of the Indian Constitution, which provides the right to life, has been interpreted to include the right to live in a safe, clean and safe environment. The Indian Supreme Court has widened its scope by holding that the government has to provide necessary medical facilities, and the “issue of vaccination directly correlates with right to health”. This leads us to conclude that the State must take necessary measures to control the spread of COVID-19.
A potential limitation to vaccine mandates could arise from Aruna Shanbaug, a Supreme Court case which established that individuals have the right to refuse medical treatment. This effectively means that individuals can waive their right to health, which might result in their death. However, this right to refusal is not absolute. While Indian law allows individuals to waive their fundamental rights, they must be rights in persona (rights that only affect an individual). Rights in rem (rights for benefits at large) cannot be waived off. The case of Aruna Shanbaug dealt with an individual’s life and therefore a right in persona to refuse medication.
In the case of COVID-19, the disease is communicable, and the patient’s relationship with others must be considered. The Madras High Court has clarified that there are chances that an unvaccinated individual shows no COVID-19 symptoms but still could be a silent carrier of the virus, which raises questions of public health. The Allahabad High Court also noted that “[n]o one is safe unless everyone is protected.” In addition, since no vaccine is fully effective, a small percentage of the population who receive vaccines would still fail to develop immunity. These individuals would be at risk of contracting COVID-19 from the unvaccinated population. Considering the immense public interest, I argue that the right to refuse vaccination cannot be exercised.
Even so, the Meghalaya, Assam, and Nagaland High Courts have held that coercive vaccination laws affect one’s liberty and personal autonomy and are ultra vires ab initio. The Meghalaya High Court relied on X v. Austria, which held that intrusion to a person’s body without consent violates bodily autonomy.
However, I believe that this interpretation is not appropriate. The State can curtail bodily autonomy if the restriction is legitimate, suitable, necessary, balances rights and provides procedural safeguards, that is, if the rights-restrictive measure meets the requirements of the proportionality test. Many argue that mandatory vaccination laws are not in accordance with the principles of proportionality. However, I argue that they are. Paragraphs §6 of the National Disaster Management Act and §2 of Epidemic Diseases Act gives ample powers to the Government to take special measures to control diseases. A mandatory vaccination law can easily be passed in pursuance of these, and will therefore be prescribed by law. As argued above, mandatory vaccination can also be legitimate and suitable when the virus puts others at risk. It is necessary as non-vaccination would render the vaccines ineffective and prolong the pandemic. The balancing exercise should also consider the existence of procedural safeguards, deemed inherent in orders passed by a court. The presence of safe and effective vaccines also points towards the proportionality of the measure. Even if experts consider a vaccine safe, then a few serious and lasting side effects cases will not make a duty to vaccinate disproportionate. The COVID-19 vaccines only have limited short-term mild side effects and no concrete long-lasting side effects. In light of this, the State should be authorised to compel one to vaccinate even though it might curtail bodily autonomy.
Mandatory vaccination laws have been upheld in various foreign jurisdictions. The US Supreme Court, while dealing with a law that mandated smallpox vaccinations, stated that amidst a pandemic, the State’s interest in protecting the society overrides a person’s right to liberty. It added that mandatory vaccination had a substantial relation to protecting public safety and health. Vaccination requirements for admission into public schools have also had their constitutionality confirmed, even when there was no epidemic threat. Similarly, the ECtHR has also deemed comparable laws necessary for a democratic society.
Even though mandatory vaccination laws can be challenged on the basis of various other fundamental rights, this piece limits its scope to the right to refuse medication and bodily autonomy. On such basis, while an individual is sovereign over his or her body, this sovereignty may be restricted to protect society during a pandemic. Therefore, while the State must emphasise informed consent and voluntary vaccination if need be, the State should also be authorised to impose mandatory vaccination programs.