HIGH COURT OF MEGHALAYA
Date of Order: 23.06.2021
Registrar General, Vs. State of Meghalaya
High Court of Meghalaya
Hon’ble Mr. Justice Biswanath Somadder, Chief Justice
Hon’ble Mr. Justice H.S. Thangkhiew, Judge
Mr. A Kumar, Advocate General with
Mr. S Sen Gupta, Addl.Sr.GA,
Mr. AH Kharwanlang, GA,
Mr. Chetan Joshi, Adv
Mr. Shaurya Sahay, Adv
Mr. Aditya Shankar Pandey, Adv
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. As held in Olga Tellis & Ors vs. Bombay Municipal Corporation & Ors reported at AIR 1986 SC 180 = (1985) 3 SCC 545, right to life includes right to the means of livelihood. 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. It is more about striking the right balance between an individual’s right vis-à-vis the right of the public at large. However, in substantiation of Mill‟s theory of the liberty to exercise one‟s right until it impinges on the right of another; here too, the “welfare State” is attempting to secure the rights of others, which – though legitimate – is palpably excessive owing to the procedure adopted by it. Another pivotal question emerges as to whether any notification/order published by the State Government and/or its authority can be understood as a prescription by “law” for the purposes of prohibiting a greater degree of rights; i.e., fundamental rights. In other words, 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.
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.
In the “frequently asked questions” (FAQs) on COVID-19 vaccine prepared and uploaded by the Ministry of Health and Family Welfare, Government of India, in its official website, the question which appears under serial number 3 reads, “Is it mandatory to take the vaccine?” The “potential response”, which is provided in the official website reads, “Vaccination for COVID-19 is voluntary. However, it is advisable to receive the complete schedule of COVID-19 vaccine for protecting oneself against this disease and also to limit the spread of this disease to the close contacts including family members, friends, relatives and co-workers.”
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