New Delhi: The Meghalaya High Court Wednesday observed that while vaccination is the need of the hour, mandatory vaccination “by force” violates fundamental rights.
In a suo motu public interest litigation, the bench comprising Chief Justice Biswanath Somadder and Justice H.S. Thangkhiew observed, “Article 21 encompasses within its fold, right to health, as a fundamental right. By that same analogy, the right to health care, which includes vaccination, is a fundamental right.”
“However, vaccination by force or being made mandatory by adopting coercive methods, vitiates the very fundamental purpose of the welfare attached to it. It impinges on the fundamental right(s) as such, especially when it affects the right to means of livelihood which makes it possible for a person to live,” the bench added.
The court referred to the “freedom to practice any profession or carry on any occupation, trade or business”, guaranteed under Article 19(1)(g) of the Constitution. This was after the court noted that the state government, through various orders made by deputy commissioners, had made it mandatory for shopkeepers, vendors, local taxi drivers and others to get themselves vaccinated before they can resume their businesses.
While examining whether vaccination can be made mandatory in such a manner, the court at the outset stated “clearly and unequivocally that vaccination is need of the hour — nay, an absolute necessity — in order to overcome this global pandemic which is engulfing our world.”
The court’s concerns, however, largely focussed on the measure taken by the state government in making vaccination mandatory before shopkeepers, vendors etc could resume their businesses.
The court noted that while the government was attempting to secure the rights of the public at large, its steps were “palpably excessive owing to the procedure adopted by it”.
“Compulsorily administration of a vaccine without hampering one’s right to life and liberty based on informed choice and informed consent is one thing. However, if any compulsory vaccination drive is coercive by its very nature and spirit, it assumes a different proportion and character,” it further explained.
On vaccine hesitancy
The court also considered whether the government can restrict such rights through a simple notification or an order, instead of a “law”.
“In this case, there is a clear lack of legitimacy in prohibiting freedom of carrying on any occupation, trade or business amongst a certain category or class of citizens who are otherwise entitled to do so, making the notification/order ill- conceived, arbitrary and/or a colourable exercise of power,” it opined.
It then said that the burden lies on the state to sensitise citizens on vaccination and “facilitate informed decision making” instead.
During the hearing, the advocate general told the court that the Meghalaya government had issued a direction on 22 June to all its deputy commissioners on measures to be taken for addressing vaccine hesitancy. The court was also assured by the authorities that the new directions also make the requirement of vaccination “directory and not mandatory”.
In addition, the court directed that “all shops/establishments/local taxis/auto-rickshaws/maxi cabs and buses should display prominently at a conspicuous place, a sign, “VACCINATED”, in the event all employees and staff of the concerned shop/establishment are vaccinated.” In case all of them are not vaccinated, the sign should say “NOT VACCINATED”.
The court also asserted that in case any person or organisation attempts to spread misinformation on the efficacy of vaccination, the concerned authorities “shall immediately step in and proceed against such person/organisation in accordance with law”.
(Edited by Poulomi Banerjee)