- Karan Ahluwalia, B.A L.L.B (Hons.), Gujarat National Law University
Introduction
The COVID-19 pandemic sparked off a period of intense anxiety in the realm of public health. While questions surrounding the geographic and biological origins of the underlying pathogen remain topics of inquiry- there was a shared hope that the development of a vaccine against it would stop the pandemic in its tracks. Today, a year-and-a-half into the said pandemic, multiple vaccines against COVID 19 are available for individuals to choose from. While supply-chain disruptions did limit the availability of vaccines initially, such issues have largely been resolved for the time being at least in urban areas.
Vaccines were developed, tested, and rolled out in a fast-track manner in a show of great efficiency in cooperation on the part of various national and international organisations and stakeholders. However, this attracted the apprehension that such vaccines had been approved for human use without adequate testing thereby discouraging many from getting jabbed. Governments across the world have gone to great lengths to disseminate information on the safety of such vaccines but these efforts have borne limited fruit. As a result, some states have resorted to policies that directly or indirectly mandate inoculation against COVID 19.
Degrees of compulsion around the world
The compulsion to inoculate oneself can be exerted in two methods- either by penalising those who avoid getting vaccinated through appropriate enactments or by making inoculation a condition-precedent for engaging in day-to-day activities such as going to the workplace, to supermarkets, using public transport, etc. Based on their respective political, moral, and religious ideologies, various states have attempted to enforce mandatory vaccinations to varying degrees. France suffers one of the highest vaccine skepticism rates in the EU and is therefore considering a law that makes vaccination mandatory for all healthcare workers; similarly, the decision of a hospital to fire 150 employees who refused to get vaccinated has been upheld in the United States even in the absence of governmental directives to that effect. The United Kingdom has mandated vaccination against COVID 19 for all home-care workers and is reportedly considering extending the same to all NHS workers; Italy has taken a similar stance by sending all healthcare workers refusing the vaccine on a year-long unpaid leave while Saudi Arabia has come down hard on “anti-vaxxers” by enforcing a strict “no jab, no job” policy across all sectors. The Philippine President has been in the news recently for threatening to jail and vaccinate those who refuse to voluntarily take the vaccine.
Vaccine Skepticism in India
Convincing people to take vaccines in India has always been an uphill battle. This skepticism arises out of chiefly three sources-distrust of the government’s intentions, religious beliefs, and communal propaganda. The question of whether or not the government can force people to take the vaccine has come before Indian courts many times over the past few months resulting in somewhat contradictory stances among them. In May 2021, Madras High Court directed the state government to undertake awareness campaigns espousing the need for and benefits of getting vaccinated against COVID 19- especially amongst the rural population of the state. Shortly thereafter, in June 2021, it declared via an interim order that if a person was allowed to refuse the vaccine, he could become a silent carrier of the disease and his unilateral decision could have adverse implications for public health at large because of which such right to refuse ought not to be recognised. On the other hand, while deciding on the validity of an order requiring all shopkeepers, taxi drivers and vendors in Meghalaya to be fully vaccinated before resuming their businesses, the Meghalaya High Court held that coercive and mandatory vaccination vitiates the fundamentally-welfarist purpose attached to it. Inter alia it held that the injury caused to individual liberty by enforcement of mandatory vaccination was far greater than the harm caused to the general public by not doing so- thereby opining that vaccination against COVID 19 cannot legally be made mandatory. Instead, it issued guidelines requiring businesses to label themselves as “vaccinated” or “not vaccinated” based on whether or not their employees were fully inoculated- leaving it up to the wisdom of customers to choose whom they engage with.
It is therefore evident that judicial opinion is not settled as regards the legality of mandatory vaccinations. Given the emergent nature of the situation, this is only natural. However, public authorities would benefit from some guidance in the matter, and therein lies the need for a reference to the Supreme Court of India to enable it to make an authoritative determination on the subject at the earliest. What this essentially boils down to is a delicate balancing act between preserving individual liberty with public interests. However, the determination here cannot be so straightforward as it would ignore the multitude of ethical issues that would be thrown up in the process. Guidance on how this balance can be struck may be found in guidelines on mandatory vaccinations issued by the WHO.
These guidelines address the ethical considerations that arise out of mandatory vaccination policies by providing a six-fold test which if satisfied in its entirety, would balance individual liberties with communal wellbeing. The considerations are:
1. Necessity and proportionality- Mandatory vaccination is justified only if it is done to achieve an important health goal identified by a legitimate public health authority which in our case would be ICMR. The first step should be to address the concerns of those unwilling to get vaccinated- if the same fails, only then should the state consider coercive measures.
2. Sufficient evidence of vaccine safety- Government should be able to back up their mandatory vaccination policies with unimpeachable evidence of the safety of the vaccine in key demographics such as children, young adults, elderly persons, and those with co-morbidities. Additionally, mandatory vaccination policies should also contain no-fault compensation schemes to indemnify beneficiaries against vaccine-related harm, if any.
3. Sufficient evidence of vaccine efficacy- it is not enough to show that the vaccine is safe, it must also be proved that it is reasonably capable of breaking the chain of transmission and prevent harm to unvaccinated persons through herd immunity.
4. Sufficient supply- Before embarking on a mandatory vaccination drive, the government ought to ensure that all barriers to vaccine supply are removed such that no undue burden is placed on citizens who are unable to receive their jab due to the fault of the government or a third party.
5. Fostering public trust- Coercion must never be the first step; instrumentalities of the state ought to engage in dialogue with sceptics to address their concerns. However, this effort may not convince 100% of the population to get vaccinated, that being the case, compulsion would be justified in the public interest.
6. Ethical and transparent decision-making- public health authorities that decide to make vaccination compulsory must demonstrate the decision-making process by revealing the factors that forced them to take the step. The absence of this transparency will make the process untrustworthy and undemocratic.
Conclusion
COVID has undoubtedly become an unfortunate reality of our times. Expert opinion is unanimous in its assertion that the only way to restore some semblance of normalcy is by vaccinating the maximum number of people in the shortest possible timeframe. Concerns against the vaccine arise from various sources- some legitimate, others merely rumours. It is up to the government, to engage in dialogue while time still permits, to address concerns about the safety and efficacy of the vaccine. It is only a matter of time before the mounting pile of bodies becomes too tall to ignore; if that isn’t already the case. A mandatory vaccination program that has the support of all Indians will be far more effective than one where people are forced to comply.
That being said, when a person decides not to get vaccinated, he makes a decision not only for himself but also for those whom he will infect. Consent is individual only if its consequences do not affect others, as is the case with consent for a medical procedure. Where consequences overflow and have the potential to affect the lives of others in society, the decision to take or not take the vaccine enters the public realm, and it no longer remains an individual’s decision. That being the case, a sovereign government is entrusted with the wellbeing of its citizens would be obligated to compel compliance with it vaccination directives.
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