The Union government recently filed an affidavit in the Supreme Court, which said, “Covid-19 vaccination is for wider public interest in the light of the ongoing pandemic situation. However, no person can be compelled to vaccinate against their will.” Even the recent controversy over tennis star Novak Djokovic’s refusal to take the Kovid vaccine goes with the good of the community. Balancing individual rights raises relevant questions. But should COVID vaccination be mandatory, and if so, could it be?
First and foremost, empirical evidence suggests that vaccines are effective and ensure adequate protection against serious illness or death. About 770 million individuals in India have already been vaccinated with two doses, and about 17.7 million have been given preventive doses. However, vaccine hesitancy is still a significant concern. Despite adequate availability of vaccines, many people are choosing not to get vaccinated. From vaccines to death due to alleged impotence, social media is full of such misinformation. Behavioral economics tells us that uncertainty and information asymmetry about infectious diseases lead to risk-taking human decisions. Avoiding vaccination is one such decision. There are many examples from across the country of health workers being attacked while visiting villages to get the Kovid vaccine.
If a significant segment of the population does not opt for vaccination, it will have three far-reaching public health implications. Consider the following: (1) Uninfected individuals are more likely to be infected with the virus. Not only does this endanger their lives, but it also allows the virus to multiply, grow and mutate. (2) The theory of natural selection tells us that this may result in a type of evolution that is resistant to vaccines. (3) Essentially, this would put even a fully vaccinated population at risk. Thus, healthy people who are not vaccinated put the vaccinated and most vulnerable populations at risk, be it immunocompromised individuals or those with comorbidities.
The guarantee of the collective welfare of the society is that every resident of India should get vaccinated. There are two ways to do this. (a) A less intrusive and freedom-preserving alternative to creating awareness about the benefits of vaccines. Here, the central and state governments continuously take practical interventions and run awareness programs to promote the vaccine. But despite this being done, a large population is against vaccination. (b) the more intrusive option of forcing residents to vaccinate.
But should the state force residents to get vaccinated? If yes, will it not reduce personal liberty? The conflict between individual liberty and the common good is at the heart of this debate. One of the very popular legal principles is “cellus populi supreme lex esto”, that is, the health of the people should be the supreme law. It is attributed to the Roman statesman and philosopher Marcus Tullius Cicero. The health of the people, especially those who are vulnerable, is indeed supreme. Many liberal political philosophers have also indicated reasonable restrictions on liberty in pursuit of the common good.
In his Theory of Justice, John Rawls advocates that the most equitable social order is the one that maximizes the minimum outcome, i.e. the worst-case scenario is as good as possible. As far as the Covid pandemic is concerned, it is the worst-case scenario who are most at risk, the immune-compromised and those with comorbidities.
The consequence of this is that for the good of the society as a whole, reasonable restrictions can be placed on individual liberty. For example, the Kerala High Court applied similar principles when banning smoking in public. K Ramakrishnan and others. Vs State of Kerala et al., Kerala High Court observed, “Smokers not only dig their graves prematurely, but also pose a serious threat to the lives of millions of innocent non-smokers who expose themselves to We do. [environmental tobacco smoke] thereby violating their right to life guaranteed under Article 21 of the Constitution of India.”
Logically, non-vaccinated individuals also pose a serious threat to millions of vaccinated individuals, especially vulnerable populations, thus violating Article 21. Also, as not getting vaccinated is a personal choice, there are large public costs (in terms of health care costs and the impact on the economy due to pandemic restrictions) associated with it.
Amazingly, in June 2021, the Meghalaya High Court ruled that the vaccines imposed on shopkeepers to resume work were unconstitutional as they violated the right to privacy and livelihood. However, the Supreme Court in Olga Tellis v Municipal Corporation of Bombay ruled that the Constitution does not impose an absolute ban on deprivation of life or personal liberty. Further, in KS Puttaswamy v Union of India, the Supreme Court ruled that the right to privacy is not absolute. It is subject to reasonable requirements made by the State to protect the legitimate State or the public interest. The assumption of a reasonable expectation of privacy ensures that the individual has a protected area of privacy. Also, “…the exercise of individual choices is subject to the rights of others to lead an orderly life. If a person decides not to vaccinate, he may infringe upon the rights of others to lead an orderly life.
Therefore, there appears to be a case for ‘compulsory’ vaccination, although with limited exceptions explicitly recognized by the government. The government must first rely on less intrusive interventions to increase the amount of vaccine. However, the state may also consider ‘compulsory’ vaccination, if only as a last resort to prevent significant risk of morbidity from more virulent COVID variants.
Vivek Debroy and Aditya Sinha, respectively, are the Chairman, and Additional Private Secretary (Research), Economic Advisory Council to the Prime Minister.
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