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Breaking: 'Forced Vaccination Violates Fundamental Right' : Meghalaya High Court

Nupur Thapliyal
24 Jun 2021 12:16 PM GMT
Breaking: Forced Vaccination Violates Fundamental Right : Meghalaya High Court
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"The welfare policy for vaccination can never affect a major fundamental right; i.e., right to life, personal liberty and livelihood"

The Meghalaya High Court has held that mandatory or forceful vaccination does not find any force in law and hence are to be declared as ultra vires ab initio.To ensure that people have an "informed choice" with respect to vaccination, the Meghalaya High Court issued a slew of directions to the State Government in respect of vaccination of all shops, establishments, local taxis etc.A...

The Meghalaya High Court has held that mandatory or forceful vaccination does not find any force in law and hence are to be declared as ultra vires ab initio.

To ensure that people have an "informed choice" with respect to vaccination, the Meghalaya High Court issued a slew of directions to the State Government in respect of vaccination of all shops, establishments, local taxis etc.

A division bench comprising of Chief Justice Biswanath Somadder and Justice HS Thangkhiew observed thus:

"Article 21 encompasses within its fold, right to health, as a fundamental right. By that same analogy, 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."

Furthermore, it said:

"Right to and the welfare policy for vaccination can never affect a major fundamental right; i.e., right to life, personal liberty and livelihood, especially when there exists no reasonable nexus between vaccination and prohibition of continuance of occupation and/or profession. A harmonious and purposive construction of the provisions of law and principles of equity, good conscience and justice reveals that mandatory or forceful vaccination does not find any force in law leading to such acts being liable to be declared ultra vires ab initio."

The development came while dealing with a PIL concerning orders issued by the State Government making vaccination mandatory for shopkeepers, vendors, local taxi drivers etc before they can resume their businesses.

The issue before the Court was "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?"

On Forceful Vaccination

The Court began by consideration a question of vital importance i.e. can a State Government and/or its authority issue any notification/order which is likely to have a direct effect on the fundamental rights of its citizens especially on a subject matter that concerns both public health and the fundamental rights of the individual person.

The Court was of the view that in the present case, there was 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 by making the notification/order ill-conceived, arbitrary and/or a colourable exercise of power."

"A notification/order of the State certainly cannot put an embargo and/or fetter on the fundamental right to life of an individual by stripping off his/her right to livelihood, except according to the procedure established by law. Even that procedure is required to be reasonable, just and fair (see Olga Tellis, supra). 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.", the Court observed.
"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.", the Court said further.

The Court went ahead to observe that the burden lies on the State to disseminate and sensitize the citizens of the entire exercise of vaccination with its pros and cons and facilitate informed decision-making, particularly in a situation where the beneficiaries are skeptical, susceptible and belonging to vulnerable/marginalised section of the society.  Some of them are also "gullible members of the indigenous communities who are constantly being fed with deliberate misinformation regarding the efficacy of vaccination by some persons/organisations with oblique motives."

"The welfare nature of the State isn't for coercive negative reinforcement by seizing their right to livelihood, proscribing them to earn from their occupation and/or profession without any justification in the garb of public interest, but lies in walking together with concerted efforts attempting to effectuate a social order as mandated under Article 38 by approaching the people directly by engaging them in one-to-one dialogues and dwelling on the efficiency and the positive aspects of administering of the vaccine without compromising its duty under Article 47 nor abrogating its duty to secure adequate means of livelihood under Article 39(a)."

Directions to the State Government on Vaccination

1. 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. Similarly, in the case of local taxis/auto-rickshaws/maxi cabs and buses where the concerned driver or conductor or helper(s) are vaccinated.

2. All shops/establishments/local taxis/auto-rickshaws/maxi cabs and buses should display prominently at a conspicuous place, a sign, "NOT VACCINATED", in the event all the employees and staff of the concerned shop/establishment are not vaccinated. Similarly, in the case of local taxis/auto-rickshaws/maxi cabs and buses where the concerned driver or conductor or helper(s) are not vaccinated.

3. The actual dimension of the signs, "VACCINATED" or "NOT VACCINATED" and the conspicuous place where such sign is required to be affixed/displayed shall be decided by the concerned authority of the State. In the event, any shops/establishments/local taxis/autorickshaws/maxi cabs and buses flouts the above directions, the concerned authority of the State shall immediately direct its closure/stoppage of plying.

4. So far as vaccine hesitation issue is concerned, the same is required to be dealt with by the State Government in the manner specified in its new guidelines issued yesterday by the Principal Secretary, Health and Family Welfare Department, Government of Meghalaya, read with the observations made by us hereinbefore.

5. In the event, there is any attempt made by any person/organisation to spread misinformation regarding the efficacy of vaccination amongst the people of this State, the concerned authority of the State shall immediately step in and proceed against such person/organisation in accordance with law.

On the aspect of method of implementation of the Government Welfare Schemes meant for the marginalised section of the society, the Court requested Registrar General to intimate the Member Secretary of the Meghalaya State Legal Services Authority, Shillong to bring the order dated 22nd June, 2021 to the notice of all the Secretaries of the District State Legal Services Authorities in the State who shall enquire and find out as to whether the concerned departments are actually taking steps to ensure that the Government Welfare Schemes for the marginalised section of the society are being properly and effectively implemented in a time bound manner in accordance with the guidelines.

"The Secretaries of all the District State Legal Services Authorities shall submit their respective reports to the Member Secretary, Meghalaya State Legal Services Authority, Shillong, within a period of four weeks from date so that the Member Secretary can compile the same and place the compilation before this Court through the learned Registrar General." The Court directed further.

The matter will now be considered on June 30.

Title: Registrar General, High Court Vs. State of Meghalaya

Click Here To Read Order

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