VACCINATION IS NOT MANDATORY BUT SHOULD BE ACCESSIBLE
VACCINATION IS NOT MANDATORY AS PER THE LATEST JUDGMENT OF HIGH COURT
POSTED BY INDIAN BAR ASSOCIATION ON JUNE 24, 2021 WITH 0 COMMENT
Vaccines are not mandatory and use of force or through deception if an unwilling capable adult is made to have the vaccine, would be considered both a crime and tort or civil wrong, thus rules the High Court on 23rd June 2021
Similar law is already laid down by the Supreme Court of India
The Meghalaya High Court has taken Suo Motu (on its own motion) cognizance of the ‘mandatory vaccination in Meghalaya’ with the Registrar General moving an issue-based PIL in this regard, making the State of Meghalaya, represented by the Chief Secretary as the Respondent.
(PIL No. 6/2021, Registrar General, High Court of Meghalaya Vs. State of Meghalaya)
“It has been brought to the notice of the High Court that the State, through various orders of the Deputy Commissioners, have made it mandatory for shopkeepers, vendors, local cabbies and others to get themselves vaccinated before they can resume their business.
Whether vaccination can at all be made mandatory and such mandatory action can affect the right of a citizen to earn his/her livelihood, is an issue which required consideration,” the PIL stated.
Refer the link:
The judgment of High Court of Meghalaya dated 23rd June 2021 states that;
“Thus, by use of force or through deception if an unwilling capable adult is made to have the flu vaccine would be considered both a crime and tort or civil wrong, as was ruled in Airedale NHS Trust v Bland reported at 1993 AC 789 = (1993) 2 WLR 316 = (1993) 1 All ER 821, around thirty years (30) ago. Thus, coercive element of vaccination has, since the early phases of the initiation of vaccination as a preventive measure against several diseases, have been time and again not only discouraged but also consistently ruled against by the Courts for over more than a century.”
Copy of the judgment is attached below.
The judgment of Supreme Court of India also states that vaccines are not mandatory and if any person or Authority coerces the public for vaccination, then such person or Authority would be liable for action under sections 188, 166 et al of the Indian Penal Code (Common Cause Vs. Union of India (2018) 5 SCC 1)
LEGAL POSITION ON VACCINATION IN INDIA:
The legal position settled by Hon’ble Supreme Court and various High Courts in India against forced vaccination and right to choose the health treatment for oneself and one’s children.
1.1. It is a settled legal position that a person has the fundamental right to choose medication as per his choice.
[Recent judgment dated 23rdJune 2021 passed by the Division Bench Meghalaya High Court regarding Corona Vaccines; Supreme Court judgment in the case between “Common Cause Vs. Union of India (2018) 5 SCC 1”]
1.2. On 23rd June, 2021 in the case between Registrar General, High Court of Meghalaya Vs. State of Meghalaya PIL No.6/2021, it is ruled by High Court as under;
“It has been brought to the notice of this High Court that the State of Meghalaya, through various orders of the Deputy Commissioners, has made it mandatory for shopkeepers, vendors, local taxi drivers and others to get themselves vaccinated before they can resume their businesses. Whether vaccination can at all be made mandatory and whether such mandatory action can adversely affect the right of a citizen to earn his/her livelihood, is an issue which requires consideration.
Thus, by use of force or through deception if an unwilling capable adult is made to have the „flu vaccine would be considered both a crime and tort or civil‟ wrong, as was ruled in Airedale NHS Trust v Bland reported at 1993 AC 789 = (1993) 2 WLR 316 = (1993) 1 All ER 821, around thirty years (30) ago. Thus, coercive element of vaccination has, since the early phases of the initiation of vaccination as a preventive measure against several diseases, have been time and again not only discouraged but also consistently ruled against by the Courts for over more than a century.
Till now, there has been no legal mandate whatsoever with regard to coercive or mandatory vaccination in general and the Covid19 vaccination drive in particular that can prohibit or take away the livelihood of a citizen on that ground.
In the “frequently asked questions” (FAQs) on COVID-19 vaccine prepared and uploaded by the Ministry of Health and Family Welfare, Government of India, in its official website, the question which appears under serial number 3 reads, “Is it mandatory to take the vaccine?” The “potential response”, which is provided in the official website reads, “Vaccination for COVID-19 is voluntary.
In this context, around one hundred and seven (107) years ago, in Schloendroff v Society of New York Hospitals reported at (1914) 211 NY 125 = 105 NE 92; 1914 NY Justice Cardozo ruled that „every human being of adult years and sound mind has a right to determine what shall be done with their body‟.
This finds mention in decisions of the European Commission and Court of Human Rights [X vs. Netherlands of 1978 (decision rendered on 4th December, 1978); X vs. Austria of 1979 (decision rendered on 13th December, 1979)] which has become truer in the present times across the world than ever before. 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.
However, vaccination by force or being made mandatory by adopting coercive methods, vitiates the very fundamental purpose of the welfare attached to it.”
1.3. That, the Ministry of Health and Family Welfare on its website under the heading “Frequently Asked Questions on Covid-19 Vaccine” has stated that the Covid-19 vaccine is voluntary. The link to the FAQ’s Ministry of Health and Family welfare (MOHFW) is as under:
1.4. Further, in a reply to RTI application dated 9th March 2021 filed by Anurag Sinha of Jharkhand, the Central Ministry of Health and Family Welfare has stated very clearly that “taking the Covid Vaccines is entirely voluntary and there is no relation whatsoever to provision of government facilities, citizenship, job etc. to the vaccine.”
1.5. In a reply dated 23rd March 2021 to the RTI filed by Mr. Dinesh BhausahebSolanke,RTI number A.60011/06/2020-CVAC, the Ministry of Health and Family Welfare, stated that, “the Covid-19 Vaccine being voluntary, there is no provision for compensation as of now.”
1.6. In a reply to RTI filed by Mr. Tarun, dated 16th April 2021, file number MOHFW/R/E/21/01536, the Ministry of Health and Family Welfare, replied to the first question, “Is Covid Vaccine Voluntary or Mandatory?”, thus: “Vaccination for Covid-19 is Voluntary”. Further when the applicant asked in his subsequent questions, “Can any government or private organization hold our salary or terminate us from Job in case of not taking Covid vaccine?” and “Can government cancel any kind of government facilities such as subsidies, ration and medical facilities in case of not taking covid vaccine?” the reply was, “In view of above reply, these queries do not arise”.
1.7. A perusal of the above RTI replies makes it is clear that the Union of India has made the vaccination drive completely voluntary, to coerce someone to take vaccine is not only contrary to the guidelines of the Union of India but violative of Article 14 and 21 of the Constitution of India.
1.8. There are some crucial provisions of International Covenant on Civil and Political Rights (ICCPR) attracted due to the violations of rights of citizens of those countries which are party to the Covenant and members of United Nations Organization. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49.
The relevant Articles of aforesaid covenant applicable for the present situation of corona pandemic are as under;
Article 6 (1)
Article 6 (1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
“Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
Article 6 (3)
Article 6 (3) When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
1.9.In Common Cause Vs. Union of India (2018) 5 SCC 1, it is ruled as under;
“169. In the context of health and medical care decisions, a person’s exercise of self-determination and autonomy involves the exercise of his right to decide whether and to what extent he/she is willing to submit himself/herself to medical procedures and treatments, choosing amongst the available alternative treatments or, for that matter, opting for no treatment at all which, as per his or her own understanding, is in consonance with his or her own individual aspirations and values.
Conclusions in seriatim
In view of the aforesaid analysis, we record our conclusions in seriatim:
202.1. A careful and precise perusal of the judgment in Gian Kaur case [Gian Kaur v. State of Punjab, (1996) 2 SCC 648: 1996 SCC (Cri) 374] reflects the right of a dying man to die with dignity when life is ebbing out, and in the case of a terminally-ill patient or a person in PVS, where there is no hope of recovery, accelerating the process of death for reducing the period of suffering constitutes a right to live with dignity.
202.2. The Constitution Bench in Gian Kaur [Gian Kaur v. State of Punjab, (1996) 2 SCC 648 : 1996 SCC (Cri) 374] has not approved the decision in Airedale [Airedale N.H.S. Trust v. Bland, 1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821 (CA & HL)] inasmuch as the Court has only made a brief reference to the Airedale case [Airedale N.H.S. Trust v. Bland, 1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821 (CA & HL)] .
202.3. It is not the ratio of Gian Kaur [Gian Kaur v. State of Punjab, (1996) 2 SCC 648: 1996 SCC (Cri) 374] that passive euthanasia can be introduced only by legislation.
202.4. The two-Judge Bench in Aruna Shanbaug [Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 : (2011) 2 SCC (Civ) 280 : (2011) 2 SCC (Cri) 294] has erred in holding that this Court in Gian Kaur [Gian Kaur v. State of Punjab, (1996) 2 SCC 648 : 1996 SCC (Cri) 374] has approved the decision in Airedale case [Airedale N.H.S. Trust v. Bland, 1993 AC 789 : (1993) 2 WLR 316 : (1993) 1 All ER 821 (CA & HL)] and that euthanasia could be made lawful only by legislation.
202.5. There is an inherent difference between active euthanasia and passive euthanasia as the former entails a positive affirmative act, while the latter relates to withdrawal of life-support measures or withholding of medical treatment meant for artificially prolonging life.
202.6. In active euthanasia, a specific overt act is done to end the patient’s life whereas in passive euthanasia, something is not done which is necessary for preserving a patient’s life. It is due to this difference that most of the countries across the world have legalised passive euthanasia either by legislation or by judicial interpretation with certain conditions and safeguards.
202.7. Post Aruna Shanbaug [Aruna Ramachandra Shanbaug v. Union of India, (2011) 4 SCC 454 : (2011) 2 SCC (Civ) 280 : (2011) 2 SCC (Cri) 294] , the 241st Report of the Law Commission of India on Passive Euthanasia has also recognised passive euthanasia, but no law has been enacted.
202.8. An inquiry into Common Law jurisdictions reveals that all adults with capacity to consent have the right of self-determination and autonomy. The said rights pave the way for the right to refuse medical treatment which has acclaimed universal recognition. A competent person who has come of age has the right to refuse specific treatment or all treatment or opt for an alternative treatment, even if such decision entails a risk of death. The “Emergency Principle” or the “Principle of Necessity” has to be given effect to only when it is not practicable to obtain the patient’s consent for treatment and his/her life is in danger. But where a patient has already made a valid Advance Directive which is free from reasonable doubt and specifying that he/she does not wish to be treated, then such directive has to be given effect to.
202.9. Right to life and liberty as envisaged under Article 21 of the Constitution is meaningless unless it encompasses within its sphere individual dignity. With the passage of time, this Court has expanded the spectrum of Article 21 to include within it the right to live with dignity as component of right to life and liberty.
202.12. Though the sanctity of life has to be kept on the high pedestal yet in cases of terminally ill persons or PVS patients where there is no hope for revival, priority shall be given to the Advance Directive and the right of self-determination.
202.13. In the absence of Advance Directive, the procedure provided for the said category hereinbefore shall be applicable.
202.14. When passive euthanasia as a situational palliative measure becomes applicable, the best interest of the patient shall override the State interest.
In addition to personal autonomy, other facets of human dignity, namely, “self-expression” and “right to determine” also support the argument that it is the choice of the patient to receive or not to receive treatment.
The entitlement of each individual to a dignified existence necessitates constitutional recognition of the principle that an individual possessed of a free and competent mental state is entitled to decide whether or not to accept medical treatment. The right of such an individual to refuse medical treatment is unconditional. Neither the law nor the Constitution compel an individual who is competent and able to take decisions, to disclose the reasons for refusing medical treatment nor is such a refusal subject to the supervisory control of an outside entity;”
1.10. In the case between the Parents Teachers Association, Government Higher Secondary School, Kokkur, Kerala and the State of Kerala WP (C) 36065 of 2017, the Hon’ble High Court of Kerala had passed the order on dated as under;
“If at all any parent has an objection, it has to be necessarily brought before the authorities, and there need not be any vaccination administered to such children whose parents object to the Vaccination”.
1.11. Also, in the case (W.P.(C) 343/2019 & CM Nos.1604-1605/2019) between Master Haridaan Kumar (Minor through Petitioners Anubhav Kumar and Mr. Abhinav Mukherji) Versus Union of India, & W.P.(C) 350/2019 & CM Nos. 1642-1644/2019 between Baby Veda Kalaan& Others Versus Director of Education & Others.
The Hon’ble High Court of Delhi had observed that:
“The assumption that children could be vaccinated forcibly or without consent is unsustainable. This Court is of the view that all efforts are required to be made to obtain the decision of the parents before proceeding with the MR campaign. In this regard, it would be apposite to ensure that the consent forms/slips are sent to each and every student. Since the time period for implementing the campaign is short, the response period should be reduced and parents / guardians of students must be requested to respond immediately and, in any case, in not more than three working days. If the consent forms/slips are not returned by the concerned parent, the class teacher must ensure that the said parents are contacted telephonically and the decision of such parent is taken on phone. The concerned teacher ought to keep full records of such decisions received telephonically. In respect of those parents/guardians that neither return the consent slips nor are available telephonically despite efforts by the concerned teacher, their consent can be presumed provided respondent nos. 1 and 2 ensure that full information regarding the commission is provided to all parents.”
“The contention that indication of the side effects and contraindications in the advertisement would discourage parents or guardians from consenting to the MR campaign and, therefore, the same should be avoided, is unmerited. The entire object of issuing advertisements is to ensure that necessary information is available to all parents/guardians in order that they can take an informed decision. The respondents are not only required to indicate the benefits of the MR vaccine but also indicate the side effects or contraindications so that the parents/guardians can take an informed decision whether the vaccine is to be administered to their wards/ children.”
The Hon’ble High Court of Delhi thus passed the following orders:
“MR vaccines will not be administered to those students whose parents / guardians have declined to give their consent. The said vaccination will be administered only to those students whose parents have given their consent either by returning the consent forms or by conforming the same directly to the class teacher/nodal teacher and also to students whose parents/guardians cannot be contacted despite best efforts by the class teacher/nodal teacher and who have otherwise not indicated to the contrary”.
01- Further on the issue of inform