Legality of Right to Refuse Vaccine

Abstract

Accomplishing herd immunity by way of vaccination could potentially prove to be a turning point in the present COVID-19 pandemic. Immunization against COVID-19 is not limited to attaining immunity concerning a single individual but in being instrumental to the public wellness by breaking the chain of transmission. It is essential for the complete eradication of infection of the COVID-19 virus strain and to permanently flatten the curve. In the need of hour, a question arises, whether people have discretion in refusing to get themselves vaccinated? Do people possess the right to refuse vaccine?

This article concerns itself in analyzing whether people can exercise a right not to get vaccinated against COVID-19. It will discuss the constitutional validity of the right to not get vaccinated and if the government can impose compulsory vaccination directives among the people. The paper will also take into account the views of Madras High Court and will further analyze the drawbacks of right to refuse vaccination and comprehend any legal provisions relating to the same.

Introduction

The ‘COVID-19’ pandemic has taken over the world by large and has majorly impacted the lives of the people. Since its origin in India in March of 2020, numerous variants of the coronavirus have emerged and left the population in a state of suffering and agony. The nation has been hit by two severe waves, with over 3.2 crore people being tested positive and 4 lakh people losing lives. Further, many people have lost their jobs and daily workers struggle to earn a livelihood in the midst of this pandemic. The nation is suffering as a whole and the atrocities are innumerable.

Scientists and medical experts believe that achieving herd immunity by way of vaccination can prove to be a turning point and can help in breaking the chain of transmission. The current vaccines that are being administered to the people are found to be effective in building immunity against the coronavirus.

Sadly, there has been a lot of misperceptions linked to the COVID vaccine and its side effects on the body. Substantial number of people in the nation are under the impression that the vaccine could result in infecting them with COVID rather than providing them with immunity, hence are avoiding or refusing to get themselves vaccinated.

Views of ‘Madras High Court’

In the ongoing proceedings of the case, ‘M. Karpagam v. Commissionerate for the Welfare of Differently Abled^[1]’, ‘Madras High Court’ expressed whether right to refuse vaccine in the current times be exercised.  Reluctance to get vaccinated was observed among people having disabilities. The bench expressed its opinion by stating amid the current COVID pandemic, when public health is of paramount concern, there exists the possibility of an unvaccinated individual to be silent carrier of the vaccine even though they may not display symptoms of infection. It also added that it is uncertain whether in such state of affairs, the right to refuse vaccine can be exercised.^[2]

Legislative Validity

Can the government in the current circumstances, make it mandatory/compulsory for all the citizens of the nation to get themselves vaccinated? ‘Meghalaya High Court’ has given its views, discussing whether the government can make it mandatory for the people of India to be vaccinated without causing harm to the sanctity of the Indian Constitution. Further, it discussed whether the people can refuse to take vaccine. The court in the beginning expressed that vaccination is indisputably a necessity so as to surmount the pandemic as it is the need of the hour. However, on further cogitation, the court mentioned the Jurist ‘Cardozo’ who said “every human being of adult years and sound mind has a right to determine what shall be done with their body.” On the context of this the Court concluded by saying that mandatory vaccination cannot be justified and is not constitutionally valid.^[3]

Under the ‘Indian Constitution’, Article 21 declares the ‘Right to Protection of Life and Personal Liberty’ and further establishes the right that no man shall be deprived of the facets of life which make his life worth living. Article 21 also infers that the state shall aid people and provide with basic amenities for people to meet the requirements of health, security and humane living. Further, Article 47 of the Indian Constitution establishes a DPSP stating the state’s role and responsibility in the betterment and enhancement of public health and the restriction and prohibition of drugs that are destructive to health.

In the case ‘Parmananda Katara v Union of India’^[4], the Supreme Court has interpreted that the safeguarding and preservation of life is of pre-eminent importance. It was also concluded that it is the duty of a medical practitioner to provide medical aid and appropriate treatment to the injured in order to preserve life without having to undergo any kind of legal procedure with regards to the Police. It is the duty and commitment of a medical practitioner to preserve life and administer any kind of medical treatment that can save an ailing man.^[5] To take into account the current situation of the pandemic and the need of the moment to save lives by preventing further transmission and other health complications, can the obligation of a medical practitioner to administer vaccine or the government’s policy of mandatory /compulsory vaccination stand above the individual interest and discretion of a man in regards to the interest of public health? We have known so far that force-full or any kind of administration of medical treatment on a person’s body without his or her own discretion is violative of Article 21 of the Constitution. Is it also violative of Article 21 for people who are being subjected to the environment, where an individual is refusing to get vaccinated and hence posing a threat to other people’s lives? ‘Justice Ashok Bhushan’ in a case relating to the matters of Article 21 stated that an adult person having a sound mind has the right to withdraw from any treatment in his or her own discretion.^[6]

Focusing towards some other legal provisions that is in conformity with the current matter.

Under ‘Section 268 of IPC’, it states that a person who does or omits an act that is potentially harmful and dangerous to the public in his vicinity is guilty of an offence. An unvaccinated person in this case becomes a threat and has the potential to cause danger in his surroundings^[7]. Such a person could be a silent carrier of the virus and further promote in the transmission of the virus onto other individuals. Similarly, under ‘Section 144 of CRPC empowers an ‘executive magistrate’ to deal with emerging cases and conditions by the imposition of constraints on personal freedom of individuals, where the circumstances has the potential to cause disturbance or danger to peace and tranquility in such an area, due to certain disputes.’^[8]  In the ‘Disaster Management Act, 2005’, it is prescribed under Section 51, that ‘on defiance to abide by the directions given by the Government or the Executive Committee under the Act, such a person shall be liable for “Punishment of obstruction” with imprisonment  for up to a year or fine or both. If such a defiance to follow orders and directions leads to death of people, then such a person shall be liable for imprisonment up to two years.’^[9] However, these sections would come into play, under the circumstances that the government makes vaccination mandatory.

Sections 2 and 2A of ‘The Epidemic Diseases Act, 1897’, entrusts the Central and the State Government powers to take special measures and authorize directives and impose regulations during the outbreak of a dangerous epidemic disease. The act basically empowers both the State and Central Government to make temporary measures and issue temporary regulations when threatened by an outbreak of a dangerous epidemic disease, in order to prevent the outbreak and its further spread. The Act further talk about the penalties and punishments to those individuals who disobey any regulation made under Section 3 of this act. This act also empowers the government to impose a mandatory vaccination directive and make it compulsory for all people to be vaccinated, further quashing the right to refuse vaccine.^[10]

Conclusion

Drawing inference from the above legal provisions and by examining the Constitutional validity of the right to refuse to get vaccination and government’s policy of making vaccination compulsory. It is implied that people possess the right to refuse vaccination and to withhold such a right from an individual will result in breach and violation of his Right to Protection of Life and Personal Liberty as provided by our Constitution. Contrarily, right to refusal of vaccination jeopardizes the health and life of other people in the environment. It is violative of Article 21 for people who are being subjected to an environment where unvaccinated people are posing a threat to their life. It is stated under Article 21 of the Indian Constitution that the state shall aid people and provide them with the minimum facilities and an environment which can sustain a healthy, secure and a dignified living.

Although, the imposition of a directive that makes it mandatory for people to be vaccinated by the government does not qualify to be arbitrary or oppressive, as long as it does not surpass what is reasonable for the safety of the public. When the larger interest of public health comes under concern, individual liberty stands absolute. One cannot put in danger, the lives of other people primarily out of his sole discretion and his free will to exercise it. Right to refuse vaccine shall only be valid to the point where the person is not exposing himself to any public place or any institution where his presence is directly or indirectly putting other’s health under compromise. That being said, the Government should make it mandatory for people to be vaccinated who are participating and are present in the open public or for people who are attending various institutions such as colleges, offices, airports, railway stations etc. Such a directive can help in prevention of transmission of the disease and can further help in achieving herd immunity without being autocratic and arbitrary and providing the people with an alternative course of action to exercise their sole discretion.

[1] ‘M. Karpagam v. Commissionerate for the Welfare of Differently Abled, WP No. 11850 of 2021[1]’

[2] ‘Devika Sharma, A person can be a silent carrier of COVID-19 on not taking vaccine: Can Right to Refuse Vaccine in such circumstances be exercised? SCC Online, (26^th July 2021, 3:31 PM), https://www.scconline.com/blog/post/2021/07/01/right-to-refuse-vaccine/’

[3] ‘Sanjoy Ghose’, Can Indians Legally Refuse to Take COVID-19 Vaccine? Should They? (26th July 2021, 3:50 PM), https://www.thequint.com/voices/opinion/right-to-refuse-covid-vaccine-can-indians-refuse-covidshield-covaxin-vaccine-hesitancy-legal-protection’

[4] ‘Parmananda Katara v Union of India, AIR (1989) 2039, (1989) SCR (3) 997’

[5] ‘Riya Jain, Article 21 of the Constitution of India – Right to Life and Personal Liberty, (26^th July 2021, 5:27 PM), https://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-to-life-and-personal-liberty/#_edn47’

[6] ‘Patients unable to give free consent too have right to refuse treatment: SC, (27^th July 2021, 10:27 AM), https://economictimes.indiatimes.com/news/politics-and-nation/patients-unable-to-give-free-consent-too-have-right-to-refuse-treatment-sc/articleshow/63237507.cms’

[7]  ‘Indian Penal Code (45 of 1860), S.268’

[8] ‘The Code of Criminal Procedure,1973, (2 of 1974), S.144’

[9] ‘The Disaster Management Act, 2005, (53 of 2005), S.51’

[10] ‘The Epidemic Diseases Act, 1897, S. 2,2A, 3’

Author : Ninad Bohidar and Sumedha Singh

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