On June 23, 2021, the Meghalaya High Court (HC) ruled in the case of Registrar General, HC of Meghalaya v. State of Meghalaya that “The mandatory or forced vaccinations violate the individuals’ fundamental rights guaranteed under Article 21.” The court elucidated that a coercive policy of vaccination has no force in law and should be declared ultra vires ab initio. Likewise, the Gujarat HC had also entertained a petition with a similar constitutional law conundrum. Both these cases involve serious moral questions concerning the vaccination policy with implications under the constitutional law. On the one hand, the government authorities are vigorously promoting the vaccination policy, while on the other the masses are hesitant to get vaccinated. Vaccine hesitancy refers to delay in acceptance or refusal of vaccines despite the availability of vaccine services. This hesitancy can be attributed to misinformation, rumors, fake news, etc. circulating among masses on various mediums. It has led to the government authorities taking somewhat coercive actions to vaccinate individuals, giving rise to the question of whether the vaccination policy can be made mandatory and if people can choose not to get vaccinated by asserting their fundamental rights.

The issue came before the Meghalaya HC after the court noticed that deputy commissioners, through various orders in the state, had made it mandatory for the shopkeepers, vendors, local taxi drivers, and others to get vaccinated before they could resume with their businesses. In the view of the court, this case involved two pertinent questions. Firstly, the question on the legality of the mandatory nature of vaccination policy coupled with its possible implications on the right to livelihood. The court answered this question by referring to the case of Olga Tellis & Ors. vs. Bombay Municipal Corporation & Ors. wherein it was held that the right to life entails the right to livelihood. The court stated that any state action impinging on the rights protected under Article 21 would affect rights under Article 19(1)(g) corollary. Moreover, the action would also not fall under the reasonable restrictions enunciated under Article 19(6) because the present instance is exemplary and distinguishable. The second question considered in the case was whether any notification or order issued by the state can override fundamental rights. The court while answering this stated that though the state is vested with such law-making power per Entry 6, List II of the Seventh Schedule, the same has to be in agreement with fundamental rights. In the Gujarat HC case of Yogendra Kumar v. The IAF & Ors., the IAF had issued the notice of dismissal after the petitioner refused to take the vaccine. The court however quashed the notice of dismissal and ordered the IAF to not take any coercive action against the petitioner.

As of now the vaccination policy in India is voluntary and not mandatory. Moreover, an individual under his right to life (per Article 21) may refuse to take the vaccine by referring to the case of Aruna Shaunbaug v. Union of India, in which the court had extended the ‘right to life’ to ‘the right to refuse medical treatment.’ However, the present situation is quite complex because any unvaccinated person is a threat to society.

Besides India, governments across the world are grappling with the mandate-versus-persuasion conundrum. Recently, one of the first verdicts on mandatory COVID vaccination policy was pronounced by the Federal Court of Texas in the case of Bridges v. Houston Methodist Hospital. The lawsuit was filed by the employees of Houston Methodist Hospital who alleged that termination from the job for failure to comply with the mandatory vaccination policy of the hospital is unlawful and against the public policy. However, the Court dismissed the suit and held that “the public’s interest in having a hospital capable of caring for patients during a pandemic far outweighs the vaccination preferences of 116 employees.” The Supreme Court of Brazil has also affirmed the legality of compulsory vaccination. The Court ruled that “compulsory (but not forced) vaccination is constitutional.” While some countries have endorsed compulsory vaccination, other countries, such as Australia, Denmark, etc. have a partial voluntary policy in place owing to the belief that any strict coercive measures to inoculate might worsen the situation.

The authors believe that JS Mill’s ‘Harm Principle’ can play a crucial role in resolving this constitutional deadlock. The Harm Principle states that there must be a balance between individual liberty and the protection of the entire at-risk population. Mill propounded 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.” Considering the present scenario, leaving vaccination at the discretion of masses, will put the goal of achieving herd immunity further out of reach thereby risking the lives of millions of individuals. Thus, legal compulsion as per this theory is a pragmatic approach to overcome reluctance and to ensure the well-being of the larger public interest. But it is vital to keep in mind that mandatory vaccination shouldn’t be confused with forceful vaccination and the authorities should adopt a balanced approach. Relying on this principle the court in the landmark case of  Jacobson v. Massachusetts had held that ‘a person who refuses to get vaccinated can be a potential threat to others.’ This theory has been widely referred to and relied upon in the catena of Indian cases too, including the case of Justice K.S. Puttaswamy v. Union of India in which Mill’s essay was referred. The lines cited are as follows, “The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”

The devastating COVID-19 outbreak has left the world on tenterhooks. Today universal vaccination seems to be the most viable tool to fight the spread of Coronavirus. However, vaccine hesitancy has emerged as a major challenge for the governments. According to a study, India’s vaccine hesitancy rate is around 28.7 percent with variations across states and union territories (UTs). The rate is very high in some states going as high as 42 and 41 percent in Tamil Nadu and Punjab respectively. Hence, there is an urgent need to resolve this problem through effective interventions for instance incentivization or behavioral nudges. But it is to be kept in mind that these interventions are politically legitimate and arbitrarily do not infringe on fundamental rights.

It should be clear to state authorities that a sledgehammer approach to inoculation won’t serve anybody’s interest. The government needs to come up with solutions that align vaccination strategies with Constitutional principles to achieve maximum impact. One way would be to formulate incentives that can overcome vaccine hesitancy and accelerate the vaccination process altogether. For example, the Arunachal Pradesh government distributed 20 kilograms of free rice to lure people to the vaccination centers. On the global platform too, states in the U.S. have deployed various incentives from $1 million cash prizes to a free dinner with New Jersey Gov. Phil Murphy to boost immunization. Similar approaches can be followed at the pan-India level.

Another way would be to build public trust by educating people with correct pieces of information and also by dispelling false rumors about vaccines that have misled the global population to a large extent. In hindsight, in times of such distress, the courts should responsibly use their powers while balancing the rights of an individual with that of a larger public interest.

Akrama Javed and Sampada Pande are 2nd year B.B.A. LL.B. (Hons.) students at the Gujarat National Law University, Gandhinagar.

Suggested citation: Akrama Javed and Sampada Pande, The Vaccination Vexation: A Constitutional Law Perspective, JURIST – Student Commentary, July 12, 2021, https://www.jurist.org/commentary/2021/07/javed-pande-vaccination-vexation/.

This article was prepared for publication by Giri Aravind, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org