Meghalaya High Court: The Division Bench of Biswanath Somadder, CJ. and H.S. Thangkhiew, J., decided on the question as to 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.
The Court at first deemed fit to discuss the fundamental rights in question at length and drew an analogy that right to health care, which includes vaccination, is a fundamental right. The Court however believed that vaccination by force or being made mandatory by adopting coercive methods, vitiates the very fundamental purpose of the welfare attached to it.
Any action of the State which is in absolute derogation of this basic principle is squarely affected by Article 19(1)(g). Although, Article 19(6) prescribes “reasonable restrictions” in the “interest of general public”, the present instance is exemplary and clearly distinguishable. It affects an individual‟s right, choice and liberty significantly more than affecting the general public as such or for that matter, the latter‟s interests being at stake because of the autonomous decision of an individual human being of choosing not to be vaccinated.
The Court found that in this case there is 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, making the notification/order illconceived, arbitrary and/or a colourable exercise of power. The Court further opined 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 whom 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).
Advocate General submitted that it has been advised by the Principal Secretary to the Government of Meghalaya, Health and Family Welfare Department, that the orders in the districts have to be seen as a “persuasive advisory” and not as coercion with regards to the issue of vaccination. The Principal Secretary to the Government of Meghalaya, Health and Family Welfare Department, while issuing the guidelines on 22-06-2021 has also laid down 7 points that are required to be considered for effecting change in the COVID vaccine compliance in the respective districts of Meghalaya. The Principal Secretary has clearly stated that the existing orders on vaccine compliance may be modified in the light of the new policy directions as spelt out in the guidelines and the requirement of vaccination should be directory and not mandatory. The Court agreed that it was the right step in this direction.
The Court further issued certain directions in the interest of general public:
- 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.
- 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.
[Registrar General, v. State of Meghalaya, 2021 SCC OnLine Megh 130, decided on 23-06-2021]
Suchita Shukla, Editorial Assistant has reported this brief.