Legality of Mandatory Vaccination In India In Light Of COVID-19

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“Personally, I am opposed to vaccination, and I would not want to be forced by someone to take a vaccine in order to be able to travel” – Novak Djokovic.

This is the personal choice of the athlete, but while the world is going through a pandemic together, it begs the question whether personal choices will let to prevail over the good of the public, and health.

Introduction

Importance of vaccination and immunization drives for a healthy population perceived as a significant role in public health policy. After all, it is a necessity in a country’s public health due to its effectiveness as a cheap and preventive measure to achieve the same.

India has done excellent work with its immunization schemes and especially seen while eradicating diseases and epidemics like polio and smallpox. But there exists an unpleasant side to the same. It gets highlighted in the form of forceful vaccination, deteriorating results, lack of accountability amongst others. A lot of legal and ethical issues get entwined. Some of the basic fundamental practices of freedom of religions also get affected.

The article will attempt to cover some of the most prominent issues, international comparison to understand global interpretations on this as well as the necessary steps in the wake of a pandemic – COVID 19.

Issue through the decades

Vaccination, especially nationwide programs, face many impediments. They are a mix and match of some of the reasons listed below:

– The roots trace back deep, in the colonial history of India. Started with the enactment of The Compulsory Vaccination Act 1882, which was to curb the epidemic of smallpox prevalent at the time. The absence of due implementation of the Act led to steep distrust in the Government, and their policies.

– The reach of the Indian healthcare system is not thorough. It is in particular deficit in remote and tribal areas. It is a significant cause of the residents not accepting vaccinations.

– Adverse Events Following Immunization (AEFI) is a requisite for successful immunization programs. India Government-run has an inferior AEFI surveillance system.

– The steep decline in the trusting of Government-run schemes of vaccination narrow down to:

a) Lack of engagement, accuracy and transparency of data by the Government bodies. A prime example of the same appears in the report of Tribal Health.

b) The non-existence of an accountability mechanism.

– Arguments about vaccination infringing upon a person’s right to privacy and subject to religious freedom are recent. These are subject to exceptions broken down in the later section of the article.

Perspective in modern India

Central Governments, as well as State Governments, have a massive responsibility towards public health and safety. This finds a place in the Constitution of India. Furthermore, provisions of Directive Principles and State Lists ensure and keep the authority on toes to stand by the welfare of the people. 

When a comparison from DPSPs view and mandatory vaccination formulates, the State may justify its actions. However, there is a new contradiction which can appear in the same scenario. It is that the State has the duty to provide the resources and facility of clean, safe drinking water, air, environment etc.

So if the latter is not provided, the need for vaccination increases. Mandating vaccination, an intrusion of a person’s body/ immunity to cover up a lack of efficiency in the State’s primary functions and roles is not fair. This definitely provides an interesting perspective to view the issue.

To ensure practical applications for the same, in the context of vaccines, Central legislations formed:

i. The Vaccination Act, 1880

ii. The Epidemic Diseases Act, 1897

These provide much-needed guidance in this sphere.

Contemporary issues keep evolving, which often create a need for changes in legislation so that they adapt according to the times. Moreover, with more robust protection of fundamental rights, classification of privacy as a fundamental right, a lot more angles appear for interpretation. It here becomes necessary to point how it has been held in K.S Puttaswamy v Union of India that “the right to privacy is not an absolute right and curtailed as long as the procedure is fair, just and reasonable and as long as the proportional restrictions further a legitimate state aim.” The interpretation of the same can be claimed to enforce mandatory vaccination.However, as discussed, the prevalent issues create an impediment in the balancing of the constitutional leeway and the public social benefit.

International Comparison: U.S.A

According to the US Constitution; the 14th Amendment asserts that no state shall make or enforce any law abridging the privileges or immunities of citizens of the United States or deprive any person of life, liberty, or property without due process of the law.

In 1905, Jacobson v. Massachusetts resulted in a landmark decision which became a substantive source to establish the constitutionality of enforcing vaccine mandates as well as provide for exemptions. This does vary from State to State in the USA.

Anti-Vaccination League of America founded (3 years after Jacobson v. Massachusetts) promoting the principle that “health is nature’s greatest safeguard against disease and that thus no State has the right to demand of anyone the impairment of his or her health”. However, the rest (most of them) believe in protecting public health, especially with the threat of pandemics.

Almost all states grant religious exemptions. Nevertheless, it is necessary to note that in compelling cases, the State may abridge religious freedom. Pandemics sure can find a way in this justification.

What should India’s take be in the COVID-19 scenario?

India has been prosperous in eradicating an epidemic before – smallpox. It can do so again with apparent improvements in policy implementation, engagement and accountability.

Mandatory vaccination has its roots and purpose based on public interest. In a pandemic like the situation, it becomes essential to understand that exercise of a person’s liberty cannot overpower the more significant benefit or the obligation of public health.

If India opts for mandatory vaccination, steps required will be:

1. Primarily address fundamental rights and within them the constitutional leeway for situations like these:

a. Right to privacy: As discussed, it is not an absolute right. Proportional restrictions by the State are allowed.

b. Right to religious freedom: It is subject to restrictions in relation to public order, morality, and health.

2. Availability of free and equal accessibility of vaccines. Prime focus on rural and marginalized communities.

3. Compliance and substantiation from the provisions of the National Disaster Management Act of 2005. The range of powers as provided in Sections 6-10 and Sec. 62 of the Act are enough to make it possible for the respective authority to mandate vaccination.

4. Impose vaccination of COVID 19 as a requirement for entering the country (referring International travel).

5. Impose high measures in cases of non-compliance with the necessity of a mandated vaccine. 

For example: refusing the issuance of passports. It finds justification on the grounds of India trying to maintain healthy/friendly relations with other nations.

Conclusion 

Critical understanding and evaluation of ‘mandatory vaccination’ is a need. Due care and maintaining a balance between imposing a mandatory scheme and fundamental rights of a person needs research. Thus, there has to be transparency of data. A lot more engagement of the public authorities with the public, focusing on the rural and the marginalized communities.

Lessons from the documented issues of the system need consideration and action. A healthier, inclusive plan and its incorporation need looking into. Encouraging criticism and the public’s involvement is essential. Therefore, this will help reduce the hesitancy and also build trust levels.

It is of prime essence that a strict and well-regulated and monitored accountability mechanism in place. In addition to that, lack of this will not only receive harsh criticism but also not achieve the desired result. 

Hence, strengthening surveillance system and ensuring highest standards of vaccination approval is a must for implementation of a legally valid mandatory vaccination policy.

“Conflicts between human rights and human health are inevitable, and it is important to understand that trade-offs between rights and health may be necessary.”


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