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Vaccination is one of the most effective ways to prevent people from COVID-19. As a result, with COVID-19 vaccination beginning or on the line in many nations, a issue is whether to make this vaccination mandatory to enhance compliance rates and meet public health objectives and if so, for whom and under what circumstances it should be done.
It is usual for states to impose restrictions on certain actions to preserve the health and well-being of people. Such measures may be ethically justifiable since they are necessary to protect the health of the general population. Such policies garner a lot of ethical conflicts and issues, but they should be justified by furthering another important social objective, such as public health protection. This article does not offer an opinion on whether or not COVID-19 vaccination should be made mandatory. Rather, it emphasizes crucial ethical issues and the legality of such laws if some states are considering mandates of vaccination.
The most crucial issue arising in this situation is the conflict of laws mandating vaccination with the rights of an individual. The states are trying to justify such laws on grounds of the greater good for the public, and police powers of the state. The international law does not provide a direct answer for this, but the World Health Organisation has recently published a document regarding the policies associated with mandatory vaccination which provides the consideration and caveats that should be analyzed by the states if they are planning to mandate the vaccination for COVID-19. Since international law does not provide a guideline on this issue, the stance taken differs from country to country depending upon their domestic laws.
This paper tries to analyse the issue by raising two crucial questions about if mandatory laws violate the fundamental rights of an individual and whether it is ethically justified. In the first part, the rights provided by the constitution and conventions of different countries are being analysed along with the different interpretations provided by the courts in similar issues which arose in the past. The second part analyses the ethical justification of such laws on grounds of police powers of the state and the restrictions states can impose on certain rights of the individual. Lastly, the article is concluded by providing some alternatives to mandatory vaccination.
Does it violate fundamental rights?
Several vaccines have been developed which are claimed to be safe and effective by the authorities. Now, this leads to a new challenge for the government to ensure maximum vaccinations in order to prevent further outbreaks of this deadly virus. One of the several ways to achieve maximum vaccination is mandatory vaccination i.e., to make the vaccination compulsory for everyone.
Recently, the government of Meghalaya through its orders imposed vaccination as a condition for vendors, shopkeepers, and local vehicle drivers to resume their work. The High Court of Meghalaya ruled that these orders are not in accordance with the Right to Livelihood guaranteed under Article 21 and Article 19 1 (g) which provides the right to practice any profession. There is an apparent absence of legitimacy in restricting citizens who are otherwise authorised to carry out any employment, trade, or business, rendering the order ill-conceived and arbitrary. The very basic objective of the welfare associated with vaccination is vitiated when it is forced or made mandatory by coercive methods. Right to Bodily autonomy, integrity, and personal choices constitutes an integral part of Right to Privacy and falls under the ambit of Right to Life under Article 21 as per the judgment of Justice K. S. Puttaswamy (Retd.) v. Union of India. Whether or not to let an intrusion into one’s body, even if minimal, such as by a needle, raises a question about an individual’s bodily autonomy and integrity. The decision lies solely with the individual and any sort of coercion would amount to violation of their fundamental rights. Few landmark judgments were cited in this case. In Schloendroff v Society of New York Hospitals, the court ruled that every adult human being of sound mind has the right to decide what should be done with their body. The court ruled in Airedale N.H.S. Trust v Bland forcing an unwilling capable adult to take the vaccine by coercion would be regarded a criminal as well as a civil wrong. States would be prohibited from using physical force to vaccinate individuals. The Supreme Court of India recognised that the right to life also includes the right to refuse medical treatment in the case of Aruna R. Shanbaug vs. Union of India & Ors.
A similar decision was made by European Commission in the case of X vs. Netherlands which ruled It might be permissible to make a vaccine mandatory without jeopardising the right to life and liberty of individuals based on informed choice and with due knowledge and consent. But if by its very essence and spirit, a mandatory vaccination effort is coercive, it acquires a distinct proportion and spirit.
Every human being’s life is protected under Article 2 of the European Convention on Human Rights (ECHR). The protection extends not just to cases with a fatal consequence, but also to situations in which life was threatened. Situations just jeopardising health but not life, on the other hand, fall under the protection of Article 8 ECHR rather than Article 2 ECHR. This means that in the cases of vaccinations, which infringe upon a person’s bodily integrity, the right to life is violated when there is a potential threat to life in the individual case. In the case of allergies or other contraindications on the part of the person concerned, such a threat posed by the immunization is feasible. The ECHR states that the action being taken must be “proportionate,” implying that it must be proven that a certain individual poses a considerable risk to the public. Covid-19 has distinct characteristics as a disease. Considering its severity and life-threatening potential, the government may find mandatory vaccination proportionate to deal with such a deadly virus. In this context, the erstwhile European Commission’s decision in Association of Parents v. United Kingdom expressly states that secluded casualties do not constitute an infringement of the right to life if a state maintains a control and monitoring system aimed at minimizing vaccine-associated side effects. As a result, an individual evaluation to rule out the existence of incompatibilities is a requirement for states to ensure compliance with the affirmative commitment to safeguarding lives. As a result, it is necessary to provide for exceptions to the requirement to vaccinate when medically necessary. Compulsory vaccination is thus not per se an infringement of the right to life – as long as adequate preventative measures are taken – even if solitary life-threatening circumstances or deaths occur.
Also read: Commercial Courts Act, 2015
The U.S. has legislations that mandate people to get few specific vaccines. There exists a legislative precedent that upheld this law. Jacobson v. Massachusetts was a case in which the United States Supreme Court affirmed states’ right to enforce mandatory vaccination laws. The court was of the view that individual liberty is subject to the state’s police power. According to popular notions, state power provides for the implementation of legitimate regulations to preserve public health and safety. Individual constraints are sometimes necessary for the greater good; hence mandatory vaccines do not contradict the constitutional right to liberty.
Overall, different perspectives can be seen among different courts of different countries. In India, the Right to life under Article 21 of the constitution is interpreted in a broader sense to include the Right to health as well as the Right to an individual’s bodily integrity, and thus a small amount of force even to insert a needle would be considered a violation of Right to life. Whereas, European Commission interprets the Right to life in a relatively narrower scope. It finds mandatory vaccination violative of the Right to Life only if the vaccine possesses a serious threat to the life of a person. U.S. high court has upheld the legislation which mandates vaccination because they are of the view that an individual’s liberty can be restricted for the welfare of the public at large.
Is it justified on legal grounds?
It is very evident from the previous section that mandatory vaccination interferes with the Fundamental Rights of an individual. But, mere violation of Fundamental Rights may not be sufficient to prevent the government from mandating the vaccination because generally, the constitution countries allow the state to restrict the Fundamental Rights in certain circumstances. The extent to which the rights can be restricted and the circumstances in which it can be restricted differ from country to country.
In India, a law mandating vaccination violates article 21 of the constitution which guarantees the Right to personal liberty and the Right to privacy. But it can be justified if the state imposes a reasonable restriction that is in accordance with the procedure established by law. There are few conditions laid down by the court which must be satisfied to impose a restriction on rights provided under article 21 of the constitution. The first prerequisite of Article 21 is that there must exist a law to legitimize a violation of rights. “For, no person can be deprived of his life or personal liberty except in accordance with the procedure established by law. The existence of law is an essential requirement.” Second, there must exist a need, for a legitimate state objective, ensures that the content of the statute imposing the restriction fits within the reasonableness zone specified by Article 14, which protects citizens from arbitrary actions of the state. The pursuance of a legitimate aim of the state must assure that the law is not manifestly arbitrarily applied. The third criteria guarantees that the methods used by the legislature are proportional to the aim and needs that the law is meant to address. Proportionality is an important aspect of the protection against arbitrary governmental action since it assures that the nature and magnitude of the infringement on the right do not exceed the law’s objective.
Officially, the Australian government has stated that Covid-19 vaccination would not be made mandatory; nonetheless, Australia has taken a firm stance in the past with its “no jab, no pay” policy, which has barred parents who decline to vaccinate their children from receiving certain tax benefits.
In Brazil, the Supreme Court held that local governments can make Covid vaccination mandatory, but civilians cannot be physically coerced to receive the vaccine. Certain constraints on vaccination refusalers’ rights are contemplated, such as being denied a state benefit as well as being prohibited access to certain public places.
Jacobson v Massachusetts, a 1905 US Supreme Court case, is the central premise for those in favour of obligatory vaccination. The widespread interpretation ascribed that judgment is that state police power authorises the implementation of reasonable rules to preserve public health and safety. Individual limitations are sometimes justified for the greater good, it is said, and hence mandatory vaccines do not contravene the constitutional right to liberty. Although the case is used to argue in the favour of mandatory vaccination. The current scenario is a lot different from that case. COVID-19 is not similar to smallpox, which is the core of Jacobson’s case. Smallpox has a 30 percent mortality rate, making it one of the most fatal viruses in history. It’s also known to leave lifelong scars on survivors. COVID-19 aside from its low fatality rate has a specific group that it affects disproportionately: the elder people and those having comorbidities. Almost 90% of the population (who are under 60 years,) will be unaffected by the coronavirus provided they don’t have another major health issue. For example, the likelihood of a 0-29-year-old (without comorbidities) requiring hospitalisation for COVID-19 is only 0.92 percent. The judgment can still not be fully neglected although there are differences in the scenario present in the case and that of today. Judgment can still play a vital role in providing guidelines in dealing with the current situation.
According to paragraph 2 of Article 2 ECHR, state-sanctioned killings (or threat to life) do not constitute a violation of rights if they take place within the following circumstances: firstly, in defence of any individual against unlawful violence; secondly, in order to enact a lawful order or prevent flee of a person who is lawfully detained; or third, in authorised action taken to put down a riot or insurgency. Compulsory vaccination, however, does not violate Article 2 of the European Convention on Human Rights because suitable protections are in place. There would be a violation of Article 2 ECHR without these safeguards because vaccinations cannot be linked to any of the purposes listed in Article 2 (2) ECHR. In the case of Articles 8 and 9 of the ECHR, however, it must be determined if the interferences created by mandatory vaccination are justified. The requirements are specified in the corresponding paragraphs (2) and are almost identical in most cases. As a result, interference is permissible if it is founded on sound legal principles, serves a legitimate goal, and is required in a democratic society.
In the case of probable positive obligations that may develop as a result of mandatory vaccination, the scenario is a little different. A fair balance must be established between the common interests of the public and the interest of an individual while determining if a positive obligation exists. Hence, it constitutes an infringement of rights if the state fails to comply with the obligation that has been established.
It is evident from the above examples that national laws are highly inconsistent and states continue to grapple with intricate, competing, and significant issues. As the crisis unfolds, restrictions on the rights of the individuals are likely to persist. It does not possess a problem unless it is in conflict with the laws.
Though there exists an issue of interference with the rights of individuals, Mandatory vaccination is supported by the exercise of the state’s police power. The term “police” was coined to characterize the powers that allow sovereign states to exert authority in the public interest, particularly in the areas of health & welfare. Mandatory vaccination is a legitimate use of the police powers of the state to safeguard the public interest. The employment of those authorities is justified by a disease eradication programme. To achieve vaccine efficacy on a large scale, the state must use the least restrictive and invasive method possible. Of course, mandatory vaccination infringes on a person’s right to bodily autonomy and integrity, but even those rights aren’t immutable. In the vast majority of instances, the societal advantages of vaccinations significantly outweigh the rare hazards associated with them. That is a real risk, but it must be weighed against the number of individuals who would have been spared if an efficient vaccine approach had been implemented.
A major foundation of public health ethics is the notion of minimal infringement. The principle asserts that when selecting between various policies to achieve a specific public health objective, the authorities should choose the policy that affects the least on certain individual rights. In particular, bodily integrity and physical autonomy, which appear to be the two primary rights that forced vaccination practises, appear to jeopardise.
An alternative directed by the Meghalaya High Court in the case of Registrar General HC of Meghalaya v State of Meghalaya was that the establishments and public places should have a sign of VACCINATED/ NOT VACCINATED to inform the public about it.
The states should create awareness among the people about the importance of vaccination. In the event that anyone makes an attempt to propagate false information about the efficacy of vaccines among the public, the State’s concerned authorities shall immediately intervene and take appropriate action against such person or organization in compliance with the law. Countries, like Australia, provide monetary incentives to encourage people to abide by the rules and to increase compliance. Parents receive $129 as non-taxable benefits for every child who fulfills immunization requirements.
Interferences with the rights of the individual can be justifiable if the benefit to the society surpasses the hardship of an individual. Several factors can affect this assessment, making it difficult to answer the question of whether mandatory vaccination should be permissible or not with a straightforward “yes” or “no.” Rather, it is reliant on the circumstances in which the vaccination takes place, particularly the immunizations covered by the responsibility, which must be examined on an individual basis. Compulsory vaccination is thus feasible for diseases that are highly contagious and associated with substantial concerns, provided that the vaccine provided is safe and efficient. Many variants of COVID-19 are being found which are predicted to be more contagious and harmful. Vaccination is in the best interest of the human across the globe. The states should try to achieve maximum vaccination with the least restrictive measures and the alternatives possible.
Author: Rupali Yadav,National Law University Delhi
Editor: Kanishka Vaish, Senior Editor, LexLife India.