Right to Vaccines

Reading time : 8 minutes

The COVID-19 Pandemic has taken the world by storm and despite various restrictions placed, still there are places heavily affected in various parts of the world. Countries have put up lockdowns, imposed restrictions on domestic and international travels, etc. to curb its spread, all of which have been successful in varying degrees. For example, New Zealand has shown an excellent response towards the COVID-19 pandemic and several countries following its example. Moreover, the population of the world is over 7.8 billion and 2.19 billion doses were administered across the world and out of the total doses administered, India has administered 239 million doses. Despite the seemingly large number of doses administered, this only constitutes a 3.4% of its entire population which is fully vaccinated.

Why is this happening? Despite India being called the “Vaccine factory of the World”, the country is going through a lean phase when it comes to vaccination during the COVID-19 pandemic. Recently, our country has established a record of administering 85 lakh doses in a single day, but a large segment of the population still remains unvaccinated[1], which brings us to the question of vaccination; What are the reasons for this large population still remaining unvaccinated?

Out of the 2.19 billion doses administered across the world, India has administered 239 million doses and despite the large number of doses administered, this constitutes a fully vaccinated only 3.4% of its entire population, even at the rate of almost 3 million doses administered per day. Israel is the leading country with over 84% of its population aged 70 and older having received their complete vaccination of 2 doses by February. The reasons for this low rate of vaccination in India can be attributed to the enormous population of the country, reaching at 1.39 billion as of 2021, bureaucratic inefficiency and many other factors such as the issues regarding CoWIN website, vaccine shortage, etc.

This and no assurance from the central government regarding vaccines deprives most of the general public from the vaccines, thereby denying them their right to vaccine. Also, the ever-increasing problem of vaccine hesitancy cannot be ignored as well in a time where vaccination could be a choice between life or death.

This concept of right to vaccines has been advocated for a long time by the GAVI- the Global Vaccine Alliance and the World Health Organization (WHO). This originates from the idea that vaccination merely does not mean simply immunity from diseases for an individual; rather it approaches the idea of creating a herd immunity by achieving universal vaccination, which would help and protect humanity, which is necessary during a pandemic of such scale and for a disease which has shown a high infection and mortality rate in today’s times, where advanced medical technology has conquered almost every disease affecting humanity.

The right to health originates from the Article 21 of the Indian Constitution. This has been decided by the Supreme Court in the 1984 case of Paschim Bengal Khet Mazdoor Samitee v State of Bengal[2], where it was decided that the right to health was a primary duty of the welfare state, which obligated the government to provide adequate medical facilities to its citizens and India, being a welfare state, must enforce the right to vaccines, in order to safeguard the population of its country in today’s troubled times, where cases are rising, employment is scarce and people have been in quarantine and self-isolation for most of the time. The 1984 case of Bandhua Mukti Morcha v Union of India & Ors[3], in which it was decided that the Right to health encompassed the right to affordable treatment is another example of why the right to vaccines must prevail. India is and enormous country and with its equally massive population comes their associated challenges. A major challenge to vaccination is vaccine hesitancy.

Vaccine Hesitancy or Vaccine Skepticism can be defined as the reluctance to get vaccinated despite the availability of vaccines. It has been listed as one of the top ten threats to global health by the World Health Organization in 2019[4], which is still prevalent in India today, negatively impacting the pace of the vaccination drive.  

Combating vaccine hesitancy and skepticism can be tough due to its complex nature. There are more vaccine hesitant people than vaccine refusing people. People may be hesitant for multiple reasons to take a vaccine rather than outright refusing it, which is different from people who actively refuse vaccination, also called as “anti-vaxxers”. A simple example of a vaccine hesitancy can be: Since people aged 45 and above are the first to receive their COVID-19 vaccination doses, a person aged above 45 maybe unsure whether to take the vaccine and may have some questions regarding how the COVID-19 vaccine was developed and if it would be safe to take it.

These questions can be properly alleviated by a doctor, but in India, the doctor to population ratio is 1:1456, which is less than the WHO recommended 1:1000.[5] This doctor shortage leads to less doctor-patient interactions, during which any doubts by the patients can be alleviated. Also, most of the doctors are concentrated in a few states and not evenly distributed. This is seen by the 15% of the total 12,01 354 registered allopathic doctors (as per 30th September 2019) working in the state of Maharashtra, 12% in the state of Tamil Nadu and 10% in the state of Karnataka.[6] Such uneven distribution of doctors can prevent people from getting timely health care in the pandemic.

This distribution inequality between states is further exacerbated by the fact that only 11 states out of the 29 states have the WHO recommended doctor to population ratio of 1:1000, which counts only private hospitals. Public Healthcare in India is worse at a mere 0.08 doctors per 1000 people, which seriously undermines the effectiveness in combating vaccine hesitancy. To solve this problem, the government must increase the number of doctors per 1000 people, allocate doctors properly in order to ensure even distribution of doctors all over India. To achieve this, the government must increase the budget allocated to public health services. Currently, India spends only about 1.8% of its GDP on public health services, which is very less in comparison to countries such as Japan and USA, which spend 9.21% and 8.51% of their GDPs for public health services.[7]

In such cases, how can vaccine-hesitant people be alleviated of any of their concerns regarding vaccines? This also results in a large-scale decrease in the quality of healthcare if doctors are overburdened, which in turn will also affect the ability to reduce vaccine hesitancy. A person with vaccine hesitancy can be seen as clay; if it is molded correctly by clearing any doubts, the person has in mind about taking a vaccine, it can give a substantial boost towards reducing vaccine hesitancy in India. However, seeing the current status of the healthcare system in India, there is a large mismatch in the number of doctors and the population. People can be made aware on a large scale via TV advertisements or mass media. But some people may still have some doubts and if they are allowed to linger in the mind of the person and are shaped by the internet by the way of fake news and misinformation, heavily forwarded as ads, messages and word-of-mouth, it can exacerbate the situation and lead to something even worse.

Vaccine hesitancy is prevalent in rural areas, where deep-rooted beliefs of people may contribute to their reluctance in taking vaccines. This can be seen in the recent case of vaccine hesitancy during a vaccination drive in the remote area of Valparai and Nedungundram, in the state of Tamil Nadu[8]. The tribal residents in the Anamalai Tiger Reserve, after taking their first dose of the COVID-19 vaccine, showed reluctance to take vaccinations after developing a mild fever, which is a normal side-effect after taking a dose of the vaccine. Moreover, remote areas are frequently marred by extremities, both territorial and climatic. Similar cases have been observed in the areas of Karamadai and the areas near Pilloor Dam, where residents were showing reluctance in taking vaccines after side effects of fever and pain near site of vaccination surfaced.

This problem is also prevalent in the states of Uttar Pradesh, Bihar, Haryana, Chattisgarh, etc. In a survey conducted[9], a majority of people (46%) were hesitant to get a vaccine or did not answer the survey questions at all and the rest 54% did not get a vaccine due to not getting an appointment[10]. This points out the multiple issues regarding the vaccination drive; Not getting an appointment at the CoWIN site and the urgent need to increase the awareness regarding vaccination, its safety and side effects.

To combat vaccine hesitancy, the government must take cognizance of this matter immediately and increase the spread of awareness regarding the COVID-19 vaccine. This can include increasing the number of advertisements regarding the safety and effectiveness of the COVID-19 vaccine, which is necessary for a wide reach across all population demographics. Fake news regarding vaccines must be curbed to a large extent; it is common for people to get forwarded messages with clickbait titles such as: “COVID-19 spread by 5G network!”, “Vaccines developed in a hurry do not protect against COVID-19”, “By taking a vaccine, you are inviting COVID in your own body. Click here to know more.” or “Vaccines are not effective for women during periods. Click on the link to read more!”. Such unverified news must be curbed instantaneously and stricter punishments must be imposed on people who spread such news. Such news can create doubts in peoples’ minds, especially people with limited or no education. Moreover, such articles may be linked to similar such articles with similar fake news. And the security threats such dubious sites may pose can also not be underestimated.

Educated people may not believe such rumors, but during such a pandemic of a global scale, where almost every working industry possible, has been slowed down or stopped working in the physical form and most of them have been shifted to working via internet or by following the guidelines given by the government for essential services, people may have doubts regarding how the vaccine was developed in a relatively short time, due to almost no community involvement in the development of the vaccines. If this underlying doubt about how no corners being cut during vaccine development and the vaccine being completely safe can be alleviated from the minds of people in a transparent manner, it can help the government immensely in combating vaccine hesitancy. The maxim of “each one teach one” can also prove beneficial for spreading awareness regarding vaccines, where each person who has been inculcated with proper information about the vaccine by a doctor or an authorized person, they can take it upon themselves to spread proper knowledge about vaccination to people in their vicinity.

The outreach system for any doubts concerning COVID-19 cases must be widened and strengthened to ensure no question goes unanswered and concerns of callers are cleared in a cohesive manner. India, being a potpourri of cultures, languages, religions and terrains, a single solution that applies to all tactic will not work. Instead, diversification of helpline services to suit the conditions of the individual states will lead to quick and efficient problem resolution. This also needs to be backed up by strong population, language and terrain demographic data. For example, In Maharashtra, the language demographic, according to the 2011 census states that a majority of population (69.8%) speaks the Marathi language and the rest is composed of the Hindi (10.7%), Urdu and Gujrati languages.

This can be done by mobilizing help teams consisting of people who have proficiency in languages and can be called for help via internet, phone calls and if the terrains are extreme and the locations are remote, the help of local self-government and other governmental units such as India Post, whose help and wide reach to remote parts of India can be used for registering users and for delivering vaccines in remote areas according to the recommended vaccine storage conditions. This can also provide a much-needed boost and ensure its services and exceptional outreach are used to its fullest potential.  The step of hiring people with proficiency in local languages will also help in boosting employment for people who might have lost their jobs due to companies laying off employees due to the COVID-19 pandemic.

Taking a page from foreign countries, new and innovative measures can be taken up by the government to incentivize vaccination. For instance, New York’s “Vax and Scratch” program, which was started after the number of people getting vaccinated were sharply dropping. This involved making lottery tickets free for people above 18 years of age, who had taken their first vaccine dose from the 10 prescribed vaccination sites in New York. Another innovative scheme by Ohio was the program “Vax a Million”, in which people aged between 12 years and 17 years, who had received their first vaccine dose could participate in a contest, whose winner would be awarded a fully-funded 4-year scholarship including tuition fees, room costs and book costs at any Ohio state college or university. Moreover, those who aged more than 18 years had a chance to receive a prize sum of $1 million.[11]

Within the United States, companies such as Uber and Lyft are providing citizens with incentives such as free rides to vaccination sites and many offers and discounts by companies such as Bumble providing premium features to vaccinated users, Krispy Kreme offering free doughnuts to people who have been fully vaccinated, Microsoft offering free Xboxes in areas which have been hit hard by the pandemic. Moreover, employees can avail additional benefits with companies such as Apple, Accenture, Dell, IBM, Pepsi, Starbucks, LEGO and many other companies providing paid time off for getting vaccinated[12], paying vaccination costs, etc. Such incentives can massively boost the morale of people in getting vaccinated and also provide an economic boost for people who might have suffered windfall losses by loss of jobs or reduced sales during the pandemic.

Other countries such as Serbia are offering cash to citizens for getting vaccinated.[13] Communities in the Philippines have been introducing contests and raffles for vaccinated people to have a chance to win huge sacks of rice.[14] Indonesia has put up a fine up to 5 million rupiah for people refusing vaccination. Property raffles have been introduced in Hong Kong, where people would win flats if they were vaccinated.[15]

Such innovative measures can be taken by the Indian government should be taken to boost the morale of people by incentivizing vaccination, which in turn will help increase vaccination numbers. For example, the incentive of free rides to vaccination centers can be a blessing for people who may not have the economic conditions or may not live on proper terrains to travel to their vaccination sites.

The CoWIN website is an integral part of the vaccination drive. Due to the intense need for vaccines and the current vaccine shortage, with the site itself facing multiple issues such as crashes after a massive inflow of users tried to register for vaccination slots opened for people aged 18 years and above. This led to the server crashing after it got more than 27 lakh users per minute.[16] To ensure that this does not happen, the website must be overhauled and optimized completely in order to ensure that it does not glitch or crash while handling a heavy inflow of users. This will help people to efficiently and quickly choose and schedule their vaccine appointments, instead of instances of people staying up till midnight just to schedule their vaccine dose appointments or people over the age of 18 years only finding a slot for people aged 45 and above due to internal glitches with the website.

The most pressing question lingers: how to overcome the vaccine shortage? This has no doubt heavily impacted India’s vaccination drive. This could have been avoided at a much earlier stage by the government directly signing pre-supply deals with vaccine manufacturers, which could have worked to prevent vaccine shortage during the current times. However, this is not the case, since no such deals were signed. Moreover, India, being the largest vaccine maker in the world,

The above situation and over-reliance on domestic vaccine producers can be the causes of the acute vaccine shortage in India. Since only 3 vaccines are approved for use in India, the only way to mitigate this can be done by increasing the vaccine production facilities of both the Serum Institute of India and Bharat Biotech, the domestic producers of the Covishield and the Covaxin vaccines. Similar steps of increasing production must be followed for the Russian vaccine; Sputnik-V, which has been reported to have a 97.6% efficacy by the Gamaleya National Research Center of Epidemiology and Microbiology and the Russian Direct Investment Fund.[17] However, a special priority must be given Covaxin, which has shown effectiveness against multiple variants such as the Beta, Alpha and Delta variants of COVID-19.[18] The Delta variant has been reported to spread at a high rate. Moreover, this variant has been the source of a majority of infections in India and also has the potential to render some monoclonal antibody treatments ineffective.[19]

However, this may not be enough. The newest variant of COVID-19, the Delta plus variant is a mutated version of coronavirus, which is a sub-lineage of the Delta variant of COVID-19, which is characterized by a higher infection rate and resistance to vaccines. This version of the virus has been found to have the spike protein mutation K417N, which reduced the effectiveness of a cocktail of therapeutic monoclonal antibodies, as noted by top Indian virologist Shahid Jameel. This variant also has been reported to have the immune evasion property, as said by the Indian health ministry.[20] Despite a limited number cases including the Delta plus variant are being reported, the threat this poses cannot be ignored, since it is highly transmissible, as said by AIIMS director Randeep Guleria.[21] It is now more imperative for the government to take precautions since the first deaths from the Delta Plus variant of COVID-19 have occurred in Maharashtra, Tamil Nadu and Madhya Pradesh.[22]

Another thing that the government can do for Covaxin is to get a speedy approval from the WHO, which could have multiple benefits. Firstly, it would erase any doubts regarding the effectiveness of the vaccine and since people, who may be travelers or students who have taken admission in foreign universities, who may not be able to travel due to airlines and many countries making WHO approved vaccines for traveling mandatory. Since Covaxin is not WHO approved, travelers or students may not be allowed to travel to other countries.

This is particularly important for students studying in universities abroad, who may allow only vaccinated students to return to campus and since Covaxin is not a WHO-approved vaccine, Indian students may not be allowed to visit their campuses abroad and may need to get re-vaccinated with a vaccine which is WHO approved, which can be very expensive in foreign countries. Moreover, they also need to compulsorily quarantine in some countries such as Canada, where quarantine and testing facilities are expensive, something which students from economically disadvantaged backgrounds may not be able to pay for[23]. Similar is the case for Sputnik V, which also has not been approved by the WHO. All this can lead to excessive pressure on the demand of Covishield, which is the only Indian vaccine to have made it to the WHO’s Emergency Use List (EUL).

Both Bharat Biotech and the Gamaleya National Research Center of Epidemiology and Microbiology have submitted their documents and soon will be granted a result by the WHO. If both the vaccines can get a WHO approval for use in the EUL, it can result in a relief for people who have taken the vaccine.

Recently, the vaccination policy has been changed, which states that the government would buy 75% of total manufactured vaccines and the states would receive free vaccines depending on their population and rate of vaccination and the rest of the 25% vaccines would be available to private hospitals, which comes as a relief after the Supreme Court had declared the earlier vaccination policy, in which 50% of the total vaccines produced went to the Central government and the rest went to the State governments and private hospitals, as “arbitrary and irrational.” The court also went on to say that the earlier policy was framed in a manner which deterred the right to public health as per Article 21 of the Indian Constitution. Furthermore, Prime Minister Narendra Modi has announced free vaccinations for all adults from 21st June 2021, which would go a long way in reducing vaccine hesitancy and enforcing the right to vaccines in India.

Another thing that should be kept in mind regarding right to vaccines is that it cannot be forced upon citizens, which has been recently iterated by the Meghalaya High Court.[24] This comes after the Court had declared mandatory or forceful vaccination to be ultra vires ab initio and sent out directions to the State Government regarding vaccinations. This has been given by Chief Justice Biswanath Somadder and Justice HS Thangkhiew regarding a PIL, which was filed after an order issued by the State Government, which made vaccination mandatory for shopkeepers, taxi drivers, vendors, etc. for resuming their businesses. A key observation was that the right to vaccines could never affect a major fundamental right such as the right to life, especially when there was no reasonable nexus between vaccination and continuance or prohibition of occupation.

Taking a different view, The European Court of Human Rights has said that mandatory vaccination would interfere with a person’s right to integrity, but said that such interference could be justified if it would be needed to control the spread of infectious diseases. However, forcing vaccination on people may not be the best way to increase vaccination numbers. Instead, organic and inclusive ways must be implemented to enable people to recognize the benefits of vaccination and avail them. If such ways are implemented, it can immensely benefit the government and the population. However, if the hurdles of vaccine shortage and other bottlenecks are not handled duly, the right to vaccine cannot be enjoyed by the people and we would be fighting a losing battle.

[1] https://www.news18.com/news/india/85l-in-a-day-but-207-days-still-to-go-maths-behind-indias-fully-vaccinated-target-simplified-3875591.html (last visited on June 23, 2021)

[2] 1996 SCC (4) 37, JT 1996 (6) 43

[3] 1984 AIR 802, 1984 SCR (2) 67

[4] https://www.who.int/news-room/spotlight/ten-threats-to-global-health-in-2019(last visited on June 12, 2021)

[5] https://www.deccanherald.com/business/budget-2020/the-doctor-population-ratio-in-india-is-11456-against-who-recommendation-800034.html(last visited on June 10, 2021)

[6] https://www.thehindubusinessline.com/news/52-of-indias-allopathic-doctors-are-practising-in-just-5-states/article31227994.ece(last visited on June 14, 2021)

[7] https://factly.in/data-what-is-the-public-health-expenditure-in-india-as-a-share-of-gdp/(last visited on June 14, 2021)

[8] https://www.thehindu.com/news/cities/Coimbatore/vaccine-hesitancy-a-hindrance-to-covid-19-combat-in-remote-areas/article34834269.ece(last visited on June 17, 2021)

[9] https://www.ideasforindia.in/topics/governance/covid-19-vaccine-hesitancy-trends-across-states-over-time.html(last visited on June 10, 2021)

[10] https://theprint.in/opinion/vaccine-shortages-dont-translate-into-absolute-demand-in-india-see-this-survey/678197/(last visited on June 17, 2021)

[11] https://indianexpress.com/article/explained/explained-what-are-the-different-kinds-of-covid-vaccine-incentives-being-adopted-around-the-world-7338308/(last visited on June 15, 2021)

[12] https://www.vaccines.gov/incentives.html(last visited on June 19, 2021)

[13] https://indianexpress.com/article/explained/explained-what-are-the-different-kinds-of-covid-vaccine-incentives-being-adopted-around-the-world-7338308/(last visited on June 19, 2021)

[14] https://news.trust.org/item/20210622033702-hn76m/(last visited on June 23, 2021)

[15] https://news.trust.org/item/20210601155421-gr1fs/ (last visited on June 23, 2021)

[16] https://www.deccanchronicle.com/nation/current-affairs/290421/covid-19-vaccine-website-crashes.html(last visited on June 24, 2021)

[17] https://www.pharmaceutical-technology.com/news/russia-sputnik-v-efficacy/(last visited on June 23, 2021)

[18] https://www.indiatoday.in/coronavirus-outbreak/story/covishield-covaxin-vaccines-effective-delta-variant-covid-dcgi-licensure-1818075-2021-06-22(last visited on June 24, 2021)

[19] https://indianexpress.com/article/explained/the-delta-variant-what-scientists-know-7371864/(last visited on June 24, 2021)

[20] https://indianexpress.com/article/explained/explained-what-is-delta-plus-a-variant-of-coronavirus-with-k417n-mutation-7372317/(last visited on June 28, 2021)

[21] https://www.indiatoday.in/coronavirus-outbreak/story/delta-plus-variant-covid-19-india-aiims-randeep-gulerai-1818152-2021-06-22(last visited on June 24, 2021)

[22] https://indianexpress.com/article/india/delta-plus-variant-everything-you-need-to-know-7376896/(last visited on June 28, 2021)

[23] https://indianexpress.com/article/cities/pune/foreign-bound-indian-students-agonised-over-compulsory-quarantine-revaccination-7375763/(last visited on June 27, 2021)

[24] https://www.livelaw.in/top-stories/forced-vaccination-violates-fundamental-right-rules-meghalaya-high-court-176216(last visited on June 27, 2021)

Author: Ajinkyaraj Sumedh Pacharaney, NALSAR University of Law

Editor: Kanishka VaishSenior Editor, LexLife India.

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