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Vol VIII, Issue 2
Date of Publication: April 30, 2023
DOI: https://doi.org/10.20529/IJME.2022.056
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COMMENT: The vaccine mandates judgment: Some reflections
Abstract:
This paper scrutinises the Supreme Court Judgment of May 2, 2022, in a vaccine mandate-related petition. The Hon'ble Court’s Order reasserts the primacy of right to privacy and Articles 14 and 21 of the Constitution of India. However, in the interest of protection of communitarian health, the Court felt that the Government is entitled to regulate issues of public health concern by imposing certain limitations on individual rights, which are open to scrutiny by constitutional Courts. However, such mandatory vaccination directives with preconditions cannot invade an individual's right to personal autonomy and right to access means of livelihood, and must meet the threefold criteria laid down in K.S.Puttaswamy, a landmark judgment of 2017. This paper examines the validity of the arguments adopted in the Order and suggests certain infirmities therein. Nevertheless, the Order is a balancing act, and worth celebrating. The paper concludes, as a cup that is “a quarter full”, as a victory for human rights and as a safeguard against unreasonableness and arbitrariness in medico-scientific decision-making that takes the citizen’s compliance and consent for granted. If the State runs amok by way of mandatory health directives, this Order may come to the rescue of the hapless citizen.
Copyright and license ©Indian Journal of Medical Ethics 2022: Open Access and Distributed under the Creative Commons license ( CC BY-NC-ND 4.0), which permits only non-commercial and non-modified sharing in any medium, provided the original author(s) and source are credited.
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Comments:
I thank Srinivasan for his well-researched article.
I however think he has over-interpreted what he calls ‘Proposition A’
He writes
“The binary classification of vaccinated and unvaccinated groups of individuals, with respect to risks from virus transmission in Proposition A is too simplistic considering there is a range of possibilities of risk from the status of the vaccinated and unvaccinated, to extent of acquired immunity of a person due to having contracted/not contracted the disease, having been vaccinated/not vaccinated, proximity to persons with viral load shedding in the first few days of contracting the virus, immunity status of persons who have had Covid-19 but asymptomatically, status due to single dose/double dose/booster dose, status of comorbid persons, elderly, poor, economically challenged, etc, and there is also the question of efficacy of the vaccine/s after the arrival of newer variants of concern. The Bench has not considered these complexities as classificatory issues…”
As the petitioner, I can state categorically that it was not claimed that the vaccinated and un-vaccinated spread disease ‘in exactly the same measure’. It was, however, argued that the vaccine did not prevent the spread from person to person and that vaccinated persons also spread disease. There can be no justification to lock down the un-vaccinated, because he may spread the contagion while letting the vaccinated (often asymptomatic person) do the spreading without any restriction to his movements. This is unfair discrimination.
I hope this clarifies the issue.
Thank you Dr Puliyel for your comments. Well, he says I have over-interpreted what I call Proposition A. I beg to differ although he is the petitioner and has had first-hand experience of what happened in the Court. Proposition A seems to be the key to the judgment on vaccine mandates, the peg on which the related order hangs. That much is clear. My submission in the article has been that Proposition A,’s scientific validity needs to be critically examined; and the risks from transmission in both vaccinated and unvaccinated groups seem not to be the same – I have not required it to be (in the article) in “exactly the same measure”. Not so by a considerable distance. The experts/citations that have been quoted support my submission, and/or, controvert sufficiently Proposition A.
As I point out in the article, nature (and certainly the Covid-19 detritus) does not yield most of the time to neat generalizations. To base an important judgment, however desirable eventually in terms of fundamental rights, but based on a weak proposition scientifically, is unsatisfactory and undesirable for the sake of, inter alia, the resilience of the Order. The Order per se (related to the vaccine mandates prayer) is to be welcomed, nevertheless. The people of India will take whatever good they get howsoever.
I have also pointed out there is a classification problem which further makes the conclusion on vaccine mandates smell of a non sequitur, like a magician pulling a rabbit, or unicorn, out of a hat. Future students of the judgment will scratch their heads on how the final order followed the prelude elaborately stated in the judgment.
I may add I have been an admirer of Dr Puliyel’s energies, he is a rare breed in a country of more than a million doctors, a fact acknowledged by the Bench, albeit in a left-handed way: “The enthusiasm of the Petitioner in approaching this Court has not gone unobserved.” (Para 12 of the Order). But fortunately felt later “we are not inclined to entertain the challenge mounted by the Union of India to the maintainability of the Writ Petition.”