India: SC’s Judgment on Compulsory Vaccination Addresses Executive Accountability

The order sparks important conversation on the privacy of individuals.

SC's Judgment on Compulsory Vaccination Addresses Executive Accountability
A health worker gives a COVID-19 vaccine dose to a beneficiary wearing a face mask of Prime Minister Narendra Modi during a vaccination drive in Beawar, Friday, Sept. 17, 2021.

On May 12, 2022, a bench of the Supreme Court of India comprising Justice Nageshwara Rao and Justice B.R. Gavai, delivered a significant judgement in which it held that the directive of the state governments and the Union Territories to make vaccination compulsory was unreasonable.

The judgement also directed the Union government to release the data of clinical trials subject to the privacy of the individuals.

Reasoning of the court

The Supreme Court, in the substantive part of the judgement which struck down the policy of mandatory vaccination, held that vaccine mandates do not satisfy the test of proportionality as laid down in the landmark case of K.S. Puttaswamy v. UOI (2017).

The test of proportionality as elucidated by the court seeks to explain whether the object and the need that is desired to be fulfilled are proportional to the measures adopted in the law to achieve them. It also measures whether the law imposed is disproportionate to the fundamental right that is infringed by the law in achieving the objective.

The Supreme Court found that the vaccine mandates are not proportionate as there is no demonstrable data to prove that the coronavirus spreads only from the unvaccinated people and not from the vaccinated people.

This is significant considering the fact that a huge misconception exists in society, where it is generally considered that those who are not vaccinated pose a virus threat to society.

The apex court held that the vaccine mandate that infringes Article 21 of the petitioner is not proportionate as “both vaccinated and unvaccinated individuals presently appear to be susceptible to the transmission of the virus at the similar level.”

Thus, there is no reasonable ground for the restrictions imposed on unvaccinated people.

By stating that there is no difference between vaccinated individuals and unvaccinated individuals in relation to transmission of the virus, the Supreme Court has carved out the discrimination that the mandatory vaccination was trying to impose.

Prudent mention of foreign jurisdictions 

The court also took note of the developments around the world in which various courts stepped up in order to defend the privacy rights of individuals.

For example, the apex court has cited the case of New York where the city was divided into various zones such as red and orange on the basis of intensity of Covid threat. By a majority, the US Supreme Court was of the opinion that the said restrictions were violative of the First Amendment of the Constitution, which guarantees the right to freely assemble. Significantly, the apex court has also explicitly stated that fundamental rights cannot be put away even in the event of a pandemic.

The apex court also dwelt on other foreign jurisdictions such as New Zealand and New South Wales (a state in Australia) in order to show how active the judiciary was in the times of COVID-19 to safeguard the personal liberty of the citizens of the country.

The examples of these countries were likely given in order to infer that the courts in leading constitutional democracies have played a significant role in stepping up to ensure that the basic fundamental rights of the citizens of the country remain intact.

WHO’s stand on vaccination

It is interesting to see how the WHO has reacted to the idea of forced vaccination. According to its document, in the absence of a sufficient and reliable supply, and even assuming that there is a reliable supply, a policy for the general public would fail to address ethical considerations. It goes on to state that more evidence is required in order to determine whether a policy is necessary to follow.

There is also a need to take into consideration how the local health system reacts to it. Significantly, there is much emphasis on the ethical process of decision-making and how it is extremely necessary to engage people who are affected as relevant stakeholders, and others who are particularly marginalised. After going through the judgement, it appears that the abovementioned factors have also been taken into account by the Supreme Court.

The judgement should come as a big relief for the citizens of the country, since those who were still unvaccinated had been put in a disadvantageous position due to the fact that they were being denied benefits of various services.

It is hoped that various state governments will take back their directives on mandatory vaccination in light of the judgement pronounced.



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