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Mandatory Vaccination: Meddling with the Golden Triangle?

August 19, 2021

By Aarushi Jain

Concerns related to ‘job security’ are being raised worldwide at a time when various countries are considering mandatory vaccination for workers. The United Kingdom is considering making vaccination mandatory for care home staffwhereas Saudi Arabia is taking a position as hard as ‘no jab. no job.’ A similar stance has been taken by countries like Italy and Serbia for healthcare workers.

The issue that needs to be dealt with in detail is the impact of mandatory vaccination on various fundamental and basic human rights of an individual. The recent judgement of the Meghalaya High court in Registrar General, High Court of Meghalaya v. State of Meghalayaon the validity of the order made by the Deputy Commissioner of Meghalaya mandating vaccination for vendors, shopkeepers and others before resuming their businesses, held forceful vaccination to be unfounded in the existing jurisprudence. The major aspects dealt with in the judgement include Article 21, Article 19 and the related arenas.

In the historic case of Maneka Gandhi v Union of India, the Supreme Court of India held that Article 21 cannot be read in isolation and all the procedural requirements under this article are to be tested for possible contraventions with Article 14 and Article 19. This judgement opened up a new gateway for the legality test of every law on the basis of a ‘Golden Triangle’ of Article 14, 19 and 21. This Golden Triangle provides complete protection to an individual from infringement of their fundamental rights.

Perusal of the Golden Triangle

The right to equality enshrined in Article 14 of the Constitution of India, has been recognized as a part of the basic structure of the Constitution with the conceptof reasonableness and non-arbitrariness running through the whole fabric of the Constitution.

The Epidemic Diseases Act, 1897 under Section 2A and the Disaster Management Act, 2005 under Section 62 provides powers to the State Government to prescribe temporary regulations and to the Central Government to issue directions to the Union Ministries and State Governments, respectively. The above-cited authorities indicate that the Government possesses sufficient power to prescribe compulsory vaccination. A specific phrase mentioned in Section 2A “prescribe such temporary regulations to be observed by the public or by any person or class of persons as it shall deem necessary” indicates that specific guidelines for a ‘class of persons’ (workers in the present situation) stand within the given authority of the Government.

However, any administrative action made for intelligible reasons, must be measured according to the legal standard of reasonableness. A new dimension of Article 14 was laid down in E.P. Royappa v. State of Tamil Naduwhere the Court stated:-

“Where, an administrative action is challenged as ‘arbitrary’ under Article 14 on the basis of Royappa (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is ‘rational’ or ‘reasonable’ and the test then is the Wednesbury test.”

Further, the principle of proportionality, which is considered as a part of ‘Wednesbury test’ has been applied as a part of Article 14 in India. The ‘Doctrine of Proportionality’, adopted by the Supreme Court of India in Om Kumar v. Union of India, is a principle here a major concern of the court is the process, manner or method in which the priorities are ordered by the decision-maker to reach a conclusion or arrive at a decision. The conditions for the principle of proportionality as laid down in the landmark case of KS Puttaswamy v Union of India include:-

  1. Legislative action must be sanctioned by the law
  2. Rational (reasonable) connection to a legitimate aim
  3. Existence of no equally effective less restrictive measure

In the current scenario, even if the first condition of “the action being sanctioned by the law” is fulfilled, the other two conditions are not satisfied. ‘Irrational’ most naturally means ‘devoid of reasons’ whereas ‘unreasonable’ means ‘devoid of satisfactory reasons’, as explained by the House of Lords in R v. Secretary of State for the Environment. This indicates that any administrative action must be based on satisfactory reasons or else the doctrine of arbitrariness and in turn proportionality can be invoked.

The Statutory power provided to the executive extends only to “prescribe regulations and issue directions” in the interest of general public. However, there exists a marked distinction between the “regulation or governance” of a trade and the “restriction or prohibition” of it. A fine line was drawn between “regulation” and “restriction” by the Orissa High Court in Lokanath Misra v The State of Orissa:-

“Restriction may be complete or partial and where it is complete it would imply absolute prohibition. The dictionary meaning of the word ‘restriction’ includes ‘prohibition’ too…the word ‘reasonable’ implies intelligent care & deliberation, that is the choice of a course which reason dictates…”

The complete prohibition of the workers from going to work without vaccination indicates a failure on the part of government to base the action on rational and satisfactory reasons. Thus, invading the rights guaranteed under Article 14 as well as Article 19 of the Constitution.

While Article 19(g) assures the right to trade and profession, Article 21 is inclusive of the right to live with dignity which is ensured by the right to adequate work and livelihood. The right to livelihood has been accepted as a part of Article 21 by the Supreme Court in Olga Tellis and others v Bombay Municipal Corporation and others. Mandatory vaccination is a step that is compelling instead of boosting people up to get vaccinated. The concept of bodily autonomy concerned with the right to make decisions for one’s own life and future has been recognized by various international rights agreements such as the Convention on the Elimination of All Forms of Discrimination against Women and recognized by India through the landmark case of KS Puttaswamy v Union of India. It was held in Munn v Illinois that the expression ‘life’ means “not merely a person’s animal existence, but a right to the possession of each of his organs-his arms and legs, etc.”

Additionally, the right to informed consent has been recognized in Samira Kohli v. Dr. Prabha Manchanda & Anr. The Delhi HC while reviewing a noticeregarding compulsory vaccination against Measles and Rubella in children, held that such a requirement without permitting the parents of such children to give informed consent stands in violation of Article 21. Even the right to refuse medical treatment has been recognized by the court in Aruna Ramchandra Shanbaug v. Union of India & ors.

The right to bodily autonomy, to refuse medical treatment, and to informed consent and choice are facets of the right to privacy. The right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. It has been recognized as a basic human right by Article 12 of United Nations Declaration of Human Rights, 1948and by Article 17 of the International Covenant on Civil and Political Rights, 1976.


There is an imminent need to strike a balance between the severity of the threat and the intensity of the response. The principle of “least restrictive means” (third condition of the principle of proportionality) needs to be upheld while protecting the population. The Government, instead of imposing mandatory vaccination capriciously, shall encourage people to get vaccinated voluntarily by creating maximum awareness and providing incentives just as Russian authorities tried to cajole people to get the shot by offering sweeteners, such as free cars and circus tickets. Social distancing and lockdowns are a kind of preventive measures that require the voluntary application of such rules.

The obligation of the State recognized under Article 21 in State of Punjab and Others v Ram Lubhaya Bagga has been further reinforced by Article 47which provides a basis for the right to health. The right to health and medical care has been recognized as a fundamental right under Article 21 read with Articles 39(e), 41and 43. Just as such Directive Principles of State Policy cast a positive obligation on the Government to protect the public health, there is a pressing need at this time to remind citizens of their fundamental duties enshrined under Article 51-Aof the Constitution. Citizens are expected to adhere to the basic norms of civilized conduct, respecting the protocols and the honest observance of duties.

Considering that COVID-19 is an infectious disease, the erroneous conduct of the citizens such as a sizeable number of foreigners found living in one place in Delhi testing positive for covid or the reverse migration of a large number of migrant laborers from cities to villages, might jeopardise the efforts of the government to contain the spread of the virus resulting in damage to the society as a whole, raising fundamental questions about their responsibility as a citizen. Education and awareness are thus, the major instruments that need to be combined with discipline. A joint response by the Government at the global as well as the citizens at an individual level can allow for effective vaccination drives.

Author’s Information

Aarushi Jain is an undergraduate student at Dr. Ram Manohar Lohiya National Law University, India. She finds her interest in Human Rights and Public health policy. She can be contacted through her LinkedIn.

This piece was previously published by TheLawExpress.