The Legislative, Constitutional and Practical Realities of a Prospective Vaccine Mandate in India

By | September 24, 2021
Constitutional and Practical Realities of a Prospective Vaccine Mandate in India

This article on ‘The Legislative, Constitutional and Practical Realities of a Prospective Vaccine Mandate in India’ is written by Melvin Joseph and is an original work of the author and examines the Legislative, Constitutional and Practical realities concerning compulsory vaccinations.

I. Introduction

Over the past few months of the ongoing pandemic, there has been a relatively incremental, but encouraging decrease in reported hospitalisations and deaths within the country. This progress can be attributed to the government-funded rollout of vaccines, being effectuated amongst the general public. But, various technical and infrastructural issues still remain in regards to the dispensation of said vaccines, these hindrances have supplemented the enduring apprehension of the procedure within certain sections of the society. Such hesitancies stem from rampant exposure to misinformation and inequitable access to the vaccine. All of this has resulted in a national inoculation rate (15%) that is only 109th in the world (and 14th amongst populous countries).

Since the subcontinent has already been ravaged by 2 separate waves of the disease, the re-escalating number of cases in other countries caused by various evolving strains of the virus, present a rather prescient problem for the policymakers in the nation. This threat of relapse has led to increasingly prominent discussions in regards to the feasibility and constitutionality of a prospective nationwide vaccine mandate.

II. The legislative practicality of a vaccine mandate

Despite the Central government’s assurances regarding the volitional nature of the vaccination programme, several states like Gujarat, Orissa and Uttar Pradesh have issued directives requiring vaccination of individuals from certain professions, such as medical practitioners, military personnel, shopkeepers, traders and businessmen. This follows a trend of state-specific vaccine mandates being issued in countries like the US, which is one of 19 nations that have issued at least some kind of vaccine mandate (usually limited to certain at-risk sections of the society).

India can issue similar policies through the provisions of existing legislation such as The Epidemic Diseases Act and the National Disaster Management Act, which provide the state with wide discretion in regards to the passing of measures that may combat the effects of the pandemic. Even though the central government hasn’t taken any steps towards the same, the actions of the aforementioned states have nonetheless provided us with enough evidence as to the legislative feasibility of such policies

III. Constitutionality of a vaccine mandate

In the case of M. Karpagam v. Commissionerate for the Welfare of Differently Abled (2021), the Madras High Court held that, in order to protect the health of the general public, it may be necessary to compromise the right to liberty of certain individuals. Here, the dispute was in regards to the compulsory vaccination of debilitated, disabled and/or bedridden individuals. The court supported the legitimacy of a vaccine mandate, provided that the same is necessitated by public interest.

Conversely, in the case of Registrar General, High Court of Meghalaya v. State of Meghalaya (2021), the high court held that a vaccine mandate violates the right to life and liberty of citizens, thus automatically vitiating the social welfare objective that the state might be trying to achieve through such a public health measure. The case here dealt with the constitutionality of vaccine mandates being imposed upon business owners and individuals in the transport sector. This judgement follows Madan Mili v. Union of India (2021), which previously held that discrimination against unvaccinated individuals was violative of Article 14.

Outside of specific cases, the general argument for the repudiation of a vaccine mandate, arises from its violation of citizens’ right to personal liberty, as such policies encroach upon their individual autonomy and right to self-determination, in regards to their healthcare. The Supreme Court in Common Cause v. Union of India (2018), had also previously upheld an individual’s right to refuse medical treatment. But these rights are not absolute, as they can be retrenched by fair and reasonable procedure, for the service of legitimate state interest.

Akhil Bharatiya Soshit Karamchari Sangh v. Union of India has already established that the Supreme Court considers the maintenance of public health to be an indispensable responsibility of the state. Therefore, the question of the constitutional legitimacy of a vaccine mandate is a matter of whether the law enforcing the same is equitable, proportional and essential.

IV. The possible repercussions of a vaccine mandate

As far as the nation-wide imposition of a vaccine mandate is concerned, there are various technical and infrastructural considerations that need to be taken into accounts, such as the level of efficacy & safety of the vaccine, as well as the adequate supply and general access to the same. These concerns are particularly pertinent as vaccine mandates often secure adherence from citizens, by mortgaging certain freedoms guaranteed to them by the constitution. For instance, vaccination being made compulsory for certain individuals to carry on with their professions, not only infringes upon their right to personal liberty, but also their rights guaranteed under Article 19(1)(g).

As provided under Article 19(6), such restrictions are to be non-arbitrary, and commensurate with the scope of their underlying objective, as well as the severity of the prevailing situation. Furnishing a valid claim towards the fulfilling of the said condition becomes particularly problematic when you compare the situation in India to those existing in a country with existing state-wide mandates such as the US, as the discrepancy in terms of vaccine availability, infrastructural dependability and economic stability is staggering.

Therefore, even though the government possesses the statutory recourse to enact a vaccine mandate, it needs to first ensure that such a mandate would not inequitably affect certain individuals or groups, as a result of inadequate planning and armature by the state. In ad interim, the state can carry out its obligations towards the maintenance of public health through ensuring vaccine availability, enforcing mask mandates, and consistently updating its public policies in consonance with the ever-changing conditions of the pandemic. Compulsory vaccination cannot be something that is categorically dismissed, but its implementation should only be an option once the same can be carried out efficiently and equitably.


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Author: Melvin Joseph

National University of Advanced Legal Studies (NUALS), Kochi, Kerala

One thought on “The Legislative, Constitutional and Practical Realities of a Prospective Vaccine Mandate in India

  1. Rudrika Bhagat

    In my opinion the government and each state has cooperated each other in excellent manner and through which every citizen has benefitted of safety from coronavirus. And even if our fundamental rights are infrigned for that can be ignored because in current situation our priority should be our health.

    Reply

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