The Supreme Court has sought answers from the government regarding publishing clinical data on COVID vaccines, while refusing an interim stay on the ongoing vaccination. In June, the Meghalaya High Court passed an order stating that “forceful vaccination does not find any force in law.”
A week later, the Madras High Court expressed doubts over right to refuse a vaccine, especially when there is “larger interest of public health.” All these are ongoing cases and are not a final determination. Any final outcome should not only be governed by law, but should also consider the severity of COVID-19 as a disease, increasing medical awareness and also the evolving jurisprudence in this regard.
In 1796, Edward Jenner highlighted before the Royal Society of London that 13 people who had cow pox did not catch small pox. This gave rise to the term vaccination as the term “vacca” means cow in Latin.
The Vaccination Act of 1840 in the United Kingdom made vaccination against smallpox free for poor persons. Subsequently, the Vaccination Act of 1853 made infants’ vaccination compulsory in the UK, and the defaulting parents were liable for fine and imprisonment.
This law enraged a huge section of the society, and the UK witnessed riots in several cities. Simultaneously, organizations like the Anti-Compulsory Vaccination League also came into being. Similarly, in the United States, different states tried to make vaccination mandatory when small pox became an epidemic in the 1870s.
However, the same received huge opposition and the United States too witnessed formations of organizations like Anti-Vaccination Society for America. In India, the Vaccination Act of 1880 made vaccination of children mandatory in certain areas. Violation of this act mandated jail time as well as a fine.
Those against mandatory vaccination recorded their first victory when the Vaccination Act of 1898 in the United Kingdom introduced a “conscience clause” and removed penalties against parents. Thereafter, this idea of “conscientious objector” spread across the world, and incorporated arguments that are based on religious grounds as well as the natural right to choose.
The viewpoint on the right to choose also gets reflected in the Meghalaya High Court’s Order in which the Court relied upon judgment in Schloendroff v Society of New York Hospitals by the New York Court of Appeals saying “every human being of adult years and sound mind has a right to determine what shall be done with their body”.
Importantly, the Meghalaya High Court noted that jurisprudence in this regard has been consistent over the years. The fact that not everyone can be vaccinated is a medical reality. Even the mandatory vaccination laws have had exemptions on medical grounds for those who were not fit to be vaccinated.
Apart from the above-mentioned grounds, the anti-vaccination movements on many occasions have been fueled by misinformation. Ideas like vaccination leads to autism or impotency are not new and have existed since the first days of vaccination, and still thrive amongst the anti-vaxxers.
In the internet age, a more passive kind of community of “vaccine hesitant” has emerged. A vaccine hesitant may not always be against vaccination, but opposes certain vaccines. Few vaccine hesitant base their scrutiny on questions around lack of testing, efficacy, side effects, sanitation facilities at the vaccination centre etc.
COVID-19 has been an unprecedented pandemic. It is more contagious and has a higher mortality rate than common flu. Scientists have claimed that a single COVID positive person can infect more than 400 persons in the absence of social distancing. This data attains frightening proportions when one realizes that over 80% of COVID patients remain asymptomatic.
It is this threat of silent carriers, and the possible crumbling of national infrastructure that forced governments across the world to have lockdowns in one form or the other. The State Bank of India has estimated Rs. 1.5 lakh crore loss to the country due to COVID induced lockdown. Therefore, the dangers from COVID are not only medical, but also economic.
Centre for Monitoring Indian Economy in its report has claimed that over 10 million people lost their jobs in the second wave of COVID. Continued spread of COVID is resulting into mutations like the Delta and Delta Plus variants, which have escalated the fear amongst authorities across the globe.
As faster vaccination remains the best hope to counter this deadly virus, can a person’s right to choose trump over the public’s right to health? The Supreme Court of the United States in 1905 had answered this question in favour of the public’s right to health, and said that the State under its police powers can make vaccination mandatory.
The sole objective of vaccination is to protect the community against deadly diseases by achieving “herd immunity”. Expecting anti-vaxxers and vaccine hesitant people to suddenly vanish is a pipe dream.
Therefore, it becomes ever more important to increase awareness about vaccines so that more people choose to get themselves vaccinated. There is no law in the country which makes vaccination mandatory.
There are Municipalities Acts in different States that allow for mandatory vaccination, but those are mere enabling provisions, and not an inherent power to direct for vaccination.
It will be very difficult for any legislature to make any law for mandatory vaccination of all. Even if such law is made, a test of its constitutionality will be a hard fought one, with longstanding jurisprudence, including that of Right to Privacy, conflicting with new developments in medical sciences.
The Supreme Court of India has not directly ruled on mandatory vaccination but while examining the vaccination policy observed that it was not going to “second-guess the wisdom of the executive” during the second wave of Covid-19.
Importantly, the apex court has also said that it will “continue to exercise jurisdiction to determine if the chosen policy measure conforms to the standards of reasonableness, militates against manifest arbitrariness and protects the right to life of all persons.”
India has administered over 51 crore doses of the COVID vaccine. The most probable way going forward seems to be incentivising vaccination. For e.g. the Municipal Corporations in Delhi are giving a rebate on property tax to those whose family has taken the vaccine.
In the private sector, industries like airlines and restaurants are offering discounts to vaccinated customers. Governments can further spur this effort by offering rebate in stamp duties or tax benefits to vaccinated persons.
Vaccination is becoming an enabling tool in the COVID age as is clear from Vaccine Passports. It may well happen that vaccinated persons get a direct entry to malls, offices, railway station and airports, while those not vaccinated are mandated to go through thermal checks and submission of RT-PCR reports. Perhaps, the future of mandatory COVID vaccination is going to be like Aadhar. Of course, staying optional in the law, but making life without it, a lot more difficult.