Government can do whatever to contain disease
No person can be forcefully vaccinated, even in the scenario of fast spreading Covid in the recent past. Such an exercise would violate the Fundamental Right of Life & Personal Liberty (Article 21) of such an individual under the Constitution.
On the other hand, the government which is empowered with containing the spread of contagious deceases can issue directions to restrict the access of unvaccinated people to public places if they pose a threat to public safety. Such a restriction by the government would only be a reasonable one.
Existing laws in this regard
The Section 2 & 2A of the Epidemic Disease Act state that the Central Government can take extraordinary measures to tackle an outbreak of a dangerous epidemic.
The Government could even prescribe regulations for the inspection of buses, trains, goods vehicles, ships, vessels, and aircrafts and order detention of any person intending to travel or arriving in those modes of transport. So, the Government has the power to take extraordinary measures, that may include restricting the movement of unvaccinated people in public areas.
Similarly, the Section 3 of the Disaster Management Act, 2005 (DMA), provides for the Establishment of the National Disaster Management Authority (NDMA). The Section 6 of the DMA provides that the NDMA could lay down policies on disaster management and could also take other measures for the prevention and mitigation of threatening disaster situations.
The Section 14 of the DMA provides for the establishment of a State Disaster Management Authority (SDMA). The SDMA could lay down the State disaster management policy, under Section 18 of the act. So, the DMA empowers both the Central and the State governments to issue legally valid guidelines to tackle disasters, including epidemics and hence, the governments could restrict the movement of people who might be a threat to public safety, by using those powers.
SC judgement on compulsory vaccination
In Jacob Puliyel v Union of India & Ors when the petitioner sought a declaration from the SC that making the vaccination a precondition for accessing any benefits or services is a violation of the rights of citizens and are hence unconstitutional, the court declared that that the vaccination drive, undertaken by the Government of India was in the interest of the public health and cannot be faulted.
However the court held that nobody could be forcefully vaccinated as it would lead to bodily intrusion and hence the violation of an individual’s right to privacy protected under Article 21 of the Constitution of India. The SC observes that every individual has a right to choose how he lives his life and an individual can refuse unwanted medical treatment. Therefore, he cannot not be forced to take any such treatment or vaccine.
The court observed that if there is a likelihood that unvaccinated people are spreading the infection or contributing to the mutation of the virus, or burdening the public health infrastructure, then the Government could impose certain reasonable limitations on individual rights, proportionate to the objects of such limitations.
SC says individual can refuse to take vaccine
The SC says bodily integrity is protected under Article 21 of the Constitution and no individual can be forced to be vaccinated. Further, personal autonomy of an individual, which is a recognised facet of the protections guaranteed under Article 21, encompasses the right to refuse to undergo any medical treatment in the sphere of individual health.
However, in the interest of protection of communitarian health, the government is entitled to regulate issues of public health concern. The government can impose certain limitations on individual rights, which are open to scrutiny by constitutional courts to assess whether such invasion into an individual’s right to personal autonomy and right to access means of livelihood meets the threefold requirement (i) legality, which presupposes the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them, as laid down in K.S. Puttaswamy judgement on privacy.
Judicial review of policy decisions possible
The court adds that in regard to judicial review of policy decisions based on expert opinion, wide latitude is provided to the executive and the court has no expertise to appreciate and decide on merits of scientific issues on the basis of divergent medical opinion.
However, the court is not barred from scrutinising whether the policy in question can be held to be beyond the pale of unreasonableness and manifest arbitrariness and to be in furtherance of the right to life of all persons, on the basis of the material on record.
