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Explained: Does Compulsory Vaccination Violate The Right To Privacy?

This post is a part of YKA’s dedicated coverage of the novel coronavirus outbreak and aims to present factual, reliable information. Read more.

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.

Representational image.

History Of Compulsory Vaccination

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.

Against Compulsory Vaccination

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.

Covid Vaccination Queue
The fact that not everyone can be vaccinated is a medical reality. Representational image.

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.

Enormity Of COVID-19

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.

Way Forward

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 sole objective of vaccination is to protect the community against deadly diseases by achieving “herd immunity”. Representational image.

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.

Featured image is for representational purposes only.
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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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