Mandatory Vaccination and Human rights

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Abstract: The pandemic that has been raging across the world is COVID-19. It’s been more than one and half year and till now we have faced the horrific second wave as well. According to sources, the only way to combat the deadly coronavirus is the vaccination. The Serum institute of India had produced Covishield the most prominent one among other vaccines. However, according to recent news WHO had confirmed that the counterfeit versions are available in India and Uganda. Recently Cyrus Poonawalla also suggested to have the powerful booster third dose after the second dose as the antibodies go down in six months. The citizens of India were not serious until the second wave. Therefore, the mandatory vaccination for the public interest released by the Government. There were many campaigns to raise the issue among the people of some states, villages, cities. The people were very afraid to get jab of the vaccines as there were rumours among some group of people which says that it can cause infertility, the vaccines was developed with microchip for the information, the vaccine is not safe and it doesn’t work rather it can cause covid-19, it can make you sicker.

INTRODUCTION

Vavika & Ors. vs. the Czech Republic[1], the European Court of Human Rights held earlier this year that the Czech Republic’s compulsory vaccination programme for children was “necessary in a democratic society” and did not violate human rights, including the right to respect for private and family life. Compulsory vaccination techniques are legal under the European Convention on Human Rights only if the consequences of refusing immunisation are reasonable. Individuals who refused to vaccinate their children in Vavika[2] were fined little, and while their children were prohibited from entering nursery school, they were still permitted to attend normal schools. Furthermore, the in-issue vaccinations are mostly safe and have been in use for decades. The measures were viewed as preventative rather than punishing in these specific circumstances, and proportional to the goal. However, in Indian states that have implemented obligatory vaccination laws for certain particular groups of people, refusal to be vaccinated fully prevents the individual from working, which is unjustifiably unfair.

In India, Puttaswamy and the basic right to privacy article 21 of the Indian Constitution clearly guarantees the right to life. In Justice K.S. Puttaswamy (Retd.) vs. Union of India[3] the Supreme Court judicially built the right to privacy as part of the right to life. The right to bodily privacy, that is, the privacy of the physical human body and the implied right against others violating it in any way, was recognised by Justice D.Y. Chandrachud. Privacy, according to Justice R.F. Nariman, “protects an individual’s sovereignty over basic personal decisions” and is “crucial to the rule of law.” The government has broad powers under the Epidemic Diseases Act of 1897 and the Disaster Management Act of 2005, which might include mandating mandatory COVID vaccines. Puttaswamy believes that the state has the authority to control an individual’s behaviour when it has a harmful influence on society. An unvaccinated person returning to work in public puts everyone they come into contact with at danger of contracting the virus, infringing on other people’s right to have a healthy life. While an individual’s choice to refuse vaccination remains unaffected, the State is justified in regulating an unvaccinated person’s contact with society in order to preserve the public’s right to life and health, thereby striking a balance with the individual’s right to privacy. In Olga Telis v. Bombay Municipal Corporation, the Supreme Court held that Article 21 rights might be limited by a legal procedure if the method is reasonable and fair. Returning to the ruling in Vincent, it is the State’s primary responsibility to ensure and maintain health-promoting circumstances.

It also cited the ECHR’s decisions in X & Ors. vs. Austria (53 ILM 64) and X vs. Netherlands (6852/74), noting that any interference into a person’s body without their agreement, no matter how little or insignificant, would be a violation of their bodily autonomy. In situations of forced sterilisation and sex reassignment, Indian courts have already supported this concept, ruling that even minosexuals are protected. Making vaccines necessary by coercion may be detrimental, since it would create mistrust. Vaccine apprehension is already a serious problem, particularly in rural India; adopting coercive economic measures will further marginalise and punish individuals who are already misled.

Rather, the government should emphasise informed consent and voluntary immunisation. It must take on the task of educating and sensitising the public about the advantages of immunisation. It must place a greater emphasis on education and public trust, rather than relying on authoritarian tactics that violate citizens’ rights. The state cannot employ coercive measures to violate people’ basic right to privacy under the guise of vaccination and public health. The aspect of human dignity, as envisioned by our Constitution, must always be the absolute bar when balancing the objectives of public good and individual rights.

Multiple options for the government

Any move toward mandatory vaccination must be based on broader public interest. While a person may assume she is immune to the disease and so does not require vaccination, this does not prevent her from infecting others who are in the high-risk category. Vaccination against infectious illnesses is thus more than just a matter of deciding what is best for one’s own health. Parliament and state legislatures can always pass a special legislation embodying such an obligation as a legislative measure. The Compulsory Vaccination Act of 1892, enacted by the British government in response to the smallpox outbreak, did something similar. If governments wish to take executive action, there are a number of laws in place that allow them to do so. The Epidemic Diseases Act of 1897 gives state governments the authority to take whatever steps are required to prevent an epidemic disease from erupting or spreading.

Individuals[4] must be safeguarded from discrimination based on protected grounds, according to the Commissioner, and human rights principles must continue to guide the pandemic response. Vaccination policy, according to the Commissioner, should be: Justified by scientific evidence that is pertinent to the situation;

Time-limited and evaluated on a regular basis; proportional to the risks they attempt to mitigate because there are no less intrusive alternatives, it is needed; and it is respectful of privacy to the extent permitted by law.

Millions of individuals have lost their jobs or income as a result of the epidemic’s lockdowns. The state has shut down schools and houses of worship for various durations of time. Movement, political meetings, and social activities have all been limited as a result of the lockdowns. They have impacted everyone and have resulted in a significant restriction of fundamental rights. This was carried out in order to save lives.

Current policies

Vaccination is frequently used by governments as a prerequisite for receiving government-funded services.

A variant of the “no jab, no pay” approach has been proposed in Australia as a means to boost use of the COVID-19 vaccine when it becomes ready. This, however, has proven to be quite unpopular. The Family Tax Benefit Part A end-of-year supplement will be withdrawn from parents if their kid does not fulfil vaccination standards, according to the Social Services Legislation Amendment (No Jab, No Pay) Act 2015 (Cth). There are certain exceptions, but just objecting to vaccinations is inadequate. Children must be completely immunised in line with an authorised vaccination schedule in order to enter child care in NSW, according to the Public Health Act 2010 (NSW). Other countries have enacted similar measures. Most states in the United States require vaccination as a condition of admission to school.  However, exclusions (such as medical and religious exemptions) differ per state.

Similar measures for the COVID-19 vaccination, such as a hypothetical “no jab, no JobKeeper” policy, have been ruled down by Health Minister Greg Hunt. The governments of New South Wales and Victoria have similarly refused to rule out the possibility of linking vaccination to access to specific services, such as public transportation.

Compulsory vaccination would be advantageous to public health, and it is obvious that states have a duty to safeguard the lives of people under their authority. However, it should be considered if forcing people to be vaccinated will infringe on any of their rights, and if so, whether such an interference would be legal under the circumstances.

Camilleri cites two particular ECHR provisions with which mandatory vaccination would most likely conflict: Articles 8 and 9 deal with the right to respect for private and family life, as well as the freedom of thought, conscience, and religion. The main justification for a breach of these rights is that persons should have reasonable control over the acts that they engage in. As shown in the case of Herczegfalvy (1992), the forcible administration of food was examined under Article 8, but was found to be compatible with respect for the claimant’s private life, as medical treatment was deemed necessary under psychiatric principles at the time[5]. Despite the fact that the claimant was unsuccessful in this aspect, the breach would have been considered illegal if the court determined that it was not necessary, proportional, or for a legitimate purpose.

In the case of Jehovah’s Witnesses of Moscow v. Russia, the European Court of Human Rights highlighted that “free choice and self-determination were themselves basic elements of life and that, lacking any evidence of the necessity to safeguard third persons,

In the case of Article 8, the state has a major negative responsibility to guarantee that government officials do not infringe on people’s right to privacy and family life.  According to Kroon and others (1994), private life encompasses both the individual’s bodily and psychological well-being. As a result, the physical appearance of an individual is an essential factor that may be in conflict if that people are obliged by law to get vaccinated. However, Article 8(2) states that under some circumstances, a state may interfere with the enjoyment of this right. Similarly, Article 9 follows a similar rule in which governments are required to refrain from interfering until certain criteria are met. The second factor is whether the interference is consistent with the legitimate goal stated in paragraph 2 of the applicable Article. The court has often demonstrated that as long as the purpose of the interference fits within one of the provision’s purposes, it will not hesitate to certify that this condition has been met. This may be seen in the case of S.A.S. v France (2014), where the sensitive action of prohibiting full face veils in public places achieved a valid goal of ensuring that individuals can exercise their freedom to live in communal spaces without any barriers to social contact. Compulsory vaccination, on the other hand, would clearly operate in the interests of public health and safety, as well as the preservation of others’ rights and freedoms, through the successful application of herd immunity.

The third factor is arguably the most important, because “required” is a condition that is highly dependent on the circumstances. In Olssen v Sweden (1988), the term “necessary” was defined as implying the existence of a compelling societal necessity that must be commensurate to the lawful goal sought. The competent authorities had to prove in the case of Biblical Centre of the Chuvash Republic v Russia (2014) that no other means were available to attain the same goal that would cause less significant interference with the basic right at issue.

CONCLUSION

To summarise, Article 2 of the ECHR does not exclude the adoption of mandatory vaccination if precautions are taken to avoid life-threatening dangers. However, if voluntary vaccination programmes are insufficient to safeguard the vulnerable, the positive responsibility to protect the lives of people under the state’s authority may compel the state to adopt compulsory vaccination, and failing to comply with this requirement would be a breach. The goal[6] of this paper is to determine whether or not a mandatory COVID-19 vaccine would be a violation of human rights. The components of the relevant articles of the ECHR, as well as the court’s interpretation of those aspects, are the focus of the above study. Compulsory vaccination would clearly be legal if the government implemented such a programme within stated boundaries stating that it is essential and proportional in the interest of public health and safety, as well as the preservation of others’ rights and freedoms. In December 2020, JCVI supplied the UK Government with a paper including recommendations to aid in the establishment of COVID-19 vaccination policy. Based on a comprehensive review of COVID-19, demographic data, clinical risk factors for mortality and hospitalisation, as well as mathematical modelling on the potential impact of different vaccination programmes, this document made recommendations for prioritising the administration of COVID-19 vaccines in the UK[7] and India populations. Based on a comprehensive review of COVID-19, demographic data, clinical risk factors for mortality and hospitalisation, as well as mathematical modelling on the potential impact of different vaccination programmes, this document made recommendations for prioritising the administration of COVID-19 vaccines in the UK and India populations. As COVID-19 progresses, vaccine concerns grow more pressing. Given the case law on the validity of interfering with certain articles of the ECHR, it appears that a mandatory COVID-19 vaccine may be implemented while still adhering to human rights legislation. Interferences with Article 8 ECHR’s scope, on the other hand, might be allowed if the benefit to the society surpasses the cost on the individual. A variety of variables impact this balancing, making it hard to answer the issue of whether compulsory vaccination is allowed or not with a clear “yes” or “no.” Rather, it is contingent on the facts of the vaccination plan in issue, particularly the vaccines covered by the obligation, which must be examined on an individual basis. Compulsory vaccination is thus possible for illnesses that are highly infectious and associated with significant dangers, provided that the vaccine provided is safe and efficient.


[1] [2021] ECHR 116

[2] https://www.theleaflet.in/covid-19-and-mandatory-vaccination-policies-a-fundamental-rights-perspective/

[3] (2017) 10 SCC 1

[4] https://www.jurist.org/commentary/2021/08/sharma-sood-compulsory-vaccinations-privacy-livelihood/

[5] https://www.cwilson.com/human-rights-commissioner-provides-guidance-on-vaccination-requirements/

[6] https://www.hhrjournal.org/2021/07/student-essay-is-compulsory-covid-19-vaccination-a-violation-of-human-rights/

[7] https://gchumanrights.org/preparedness/article-on/is-mandatory-vaccination-against-covid-19-justifiable-under-the-european-convention-on-human-rights.html

Author: Sanchita Singh, Symbiosis Law School, Noida

Editor: Kanishka VaishSenior Editor, LexLife India.

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