Tucked in the abode of the hills, the Meghalaya High Court prefaced its judgment with “At the outset, it must be stated clearly and unequivocally that vaccination is the need of the hour-nay, an absolute necessity in order to overcome this global pandemic which is engulfing our world.” The Court then went on to ruminate on the sayings of the great jurist Cardozo who had said “every human being of adult years and sound mind has a right to determine what shall be done with their body”. Delicately balancing the conflict, the Court concluded that it could not find any legal or constitutional basis to justify “mandatory or forceful vaccination”.
As the ‘Vishwaguru’ woefully lags behind her disciples in the vaccination efforts to combat the coronavirus, ‘interesting’ legal issues are being thrown up. Perhaps it is not a coincidence after all that “May you live in interesting times” is an ancient Chinese curse!
Public Good vs Private Right
We have recently heard of show cause notices being issued to military personnel for refusing to get vaccinated, and also of Gujarat making it clear to businessmen that they would risk forced closure should they fail to get their employees ‘jabbed’.
At the heart of this legal conundrum, is the ancient conflict between public good and private rights. How should the State or the employer strike a balance between the public good that universal vaccination ensures and the private rights of the individual-her agency in matters of health and belief. Post war constitutions and international covenants and declarations scarred by the death, destruction and holocaust the world brought upon itself in the name of “public good”, heavily leaned in favour of the rights of persons.
Global History of Medical Consent: From Jehovah’s Witnesses to Roe v. Wade
Long before the virus made its way from Wuhan, the world would grapple with this issue in the context of a peculiar sect - the Jehovah’s Witnesses, given their theological aversion to blood transfusion.
Russia had prohibited the practices of Jehovah's Witnesses for a number of reasons, including their refusal to consent to blood transfusions, which, according to the Russian Government, negatively affected health. The case made its way to the European Court of Human Rights (ECHR) which held that, even if the refusal of blood transfusion resulted in death, the imposition of medical treatment without the consent of the patient would be violative of their physical integrity and would breach Article 8 of the European Convention on Human Rights which guaranteed the right to privacy.
It is indeed interesting that it has always been easier to agitate and locate the bodily rights of women and minorities in the right of privacy instead in the right to gender or ethnic justice.
Remember how the United States Supreme Court in Roe v Wade had to find the right of the women to abort in the right to her bodily privacy! However, in this case, the ECHR also concluded that the action violated religious freedom.
The Japanese Supreme Court, at the other end of the world, held that where a patient does not wish to receive blood transfusion because of his religious beliefs, a doctor who knowingly performs a blood transfusion, would be liable for damages under tort law, in order to compensate the emotional distress suffered by the patient from having been deprived of the right to decide whether or not to receive the transfusion.
The German Federal Constitutional Court also has held that performing blood transfusion on an unconscious Jehovah's Witness violated his will.
Issue of Mandatory Vaccination in the US & Beyond
When smallpox was still years from eradication, the United States Supreme Court in Jacobson was called upon to decide the validity of a Massachusetts law that empowered government authorities to enforce mandatory vaccination of residents, if deemed necessary.
The Supreme Court upheld this law, holding that individual liberty was not absolute and the vaccination law was not oppressive or arbitrary, as long as it did not go beyond what was reasonably required for the safety of the public. The Supreme Court reaffirmed this decision again upholding the refusal of admission by a school to a student who refused to be vaccinated.
During the COVID pandemic, the federal United States Court of Appeals for the 5th Circuit relied on Jacobson to uphold a Texas regulation suspending abortions as being non-essential services and surgeries during Covid. The case has also been relied on to enforce stay-at-home orders and orders requiring compulsory wearing of facemasks.
Across the pond, there is no law in the United Kingdom making vaccination for adults compulsory. The Public Health (Control of Disease) Act, 1984, lays down measures that can be taken as health protection regulations. Even this law forbids forcing persons to undergo ‘medical treatment’ which is defined to include vaccination.
This bar has also been replicated in the Coronavirus Act, 2020, for the health protection regulations in Northern Ireland and Scotland
Addition of the ‘Conscience Clause’
However, more than a century ago, the Vaccination Act of 1853 (smallpox again) had made vaccination compulsory for infants, and non-compliance was to be met with penalties, including fine or imprisonment. Subsequent legislation (the Act of 1867) had extended the age limit for compulsory vaccination to 14 years. However, in 1898, a conscience clause was added, under which, parents of those who were required to be vaccinated, could apply to a magistrate, seeking an exemption from this requirement by taking a ‘conscientious objection’. By the end of 1898 over 200,000 certificates of conscientious objection had been issued.
Right to Life vs Right to Privacy in India
In Puttuswamy’s case, the Indian Supreme Court has mined the right to privacy from the dark matter of our Constitution using the shaft of Article 21. While India’s Constitution in Article 21 had expressly guaranteed a “right to life”, the right to privacy had to be judicially constructed. The Court touched on several issues such as the privacy concerns in ‘forced feeding’ as well as the right to refuse medical treatment to prolong life which it had also touched in Aruna Shanbagh’s case, filed by Pinky Virani on behalf of Aruna.
Insofar as the private sector is concerned, I am doubtful whether, in the absence of a law, an employer can insist upon its employee getting vaccinated as a condition to keep her job. While there is overwhelming data to support the efficacy of vaccines, yet it is too early to term vaccine hesitancy as “unreasonable” and “legally untenable”.
While Section 62 of the National Disaster Management Act gives wide powers to the Central Government to issue binding directions which would at least compel government employees to toe the line and get vaccinated if the voice from Shillong finds national resonance, then only persuasion and enlightenment are the tools left for us in this epic battle.
The actor Steward Stafford had said, “where there is humanity, there is doubt”. We have no option but to find a humane way around it!
(The author is an advocate practising in the High Court of Delhi and in the Supreme Court of India. He tweets @advsanjoy. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)