A two-judge Bench of Justice L. Nageswara Rao and Justice BR Gavai has held that bodily integrity is protected under Article 21 of the Constitution and no individual can be forced to be vaccinated in view of the COVID-19 pandemic.
The Bench observed –
"With respect to the infringement of bodily integrity and personal autonomy of an individual considered in the light of vaccines and other public health measures introduced to deal with the COVID-19 pandemic, we are of the opinion that bodily integrity is protected under Article 21 of the Constitution and no individual can be forced to be vaccinated. Further, personal autonomy of an individual, which is a recognised facet of the protections guaranteed under Article 21, encompasses the right to refuse to undergo any medical treatment in the sphere of individual health."
The Court also noted that in the interest of protection of communitarian heath, 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.
The Bench further observed that the current vaccination policy of the Union of India is informed by relevant considerations and cannot be said to be unreasonable or manifestly arbitrary.
While holding that restrictions imposed on unvaccinated individuals imposed through various vaccines mandates by the State and Union Territories are disproportionate, the Court opined-
"Till the infection rate remains low and any new development or research finding emerges which provides due justification to impose reasonable and proportionate restrictions on the rights of unvaccinated individuals, we suggest that all authorities in this country, including private organisations and educational institutions, review the relevant orders and instructions imposing restrictions on unvaccinated individuals in terms of access to public places, services and resources, if not already recalled."
Counsel Mr. Prashant Bhushan appeared for the Petitioner, Solicitor General Mr. Tushar Mehta appeared for Union of India, Senior Counsel Mr. S. Guru Krishnakumar appeared for Respondent No. 4, AAG Mr. Amit Anand Tiwari for the State of Tamil Nadu, Counsel Mr. Rahul Chitnis appeared for the State of Maharashtra, Counsel Mr. Mrinal Gopal Elker appeared for State of Madhya Pradesh and Counsel Ms. Shyel Trehan appeared for Respondent No. 5 before the Apex Court.
In this case, a Writ Petition was instituted in the Supreme Court by a Paediatrician who was also a member of the National Technical Advisory Group on Immunization (NTAGI) and was advising the Government of India on vaccines.
The Petitioner in his Petition highlighted the adverse consequences of emergency approval of vaccines in India, the need for transparency in publishing segregated clinical trial data of vaccines, the need for disclosure of clinical data, lack of transparency in regulatory approvals, minutes, and constitution of the expert bodies, imperfect evaluation of Adverse Events Following Immunisation (AEFIs) and vaccine mandates in the absence of informed consent being unconstitutional.
In the Petition, it was also claimed that coercive vaccination would result in interfering with the principle of informed self-determination of individuals protected under Article 21 of the Constitution.
The Petitioner contended before the Supreme Court that natural immunity is long-lasting and robust in comparison to vaccine immunity and that vaccines do not prevent infection or transmission of Covid-19. Further, it was also argued that vaccines do not prevent infection from new variants of Covid-19, thus vaccines mandates are meaningless.
The Petitioner filed an Interlocutory Application seeking a direction to restrain all authorities and institutions, public and private, from mandating the vaccine in any manner whatsoever, on a precondition of accessing any service or on pain of any penalty
The Petitioner contended that mandating vaccination for access to resources, public places, and means of earning livelihood would be in violation of their fundamental rights, especially so, when scientific studies have shown that unvaccinated persons do not pose more danger of transmission of the virus when compared to vaccinated persons.
The Respondent No. 1 – Union of India raised a preliminary objection regarding the maintainability of the Writ Petition. It argued that the serious threat posed by the unprecedented pandemic which had devastating effects on the entire world called for emergency measures.
The Union of India expressed serious doubts about the intention of the Petitioner in filing the Writ Petition.
The Apex Court noted that it is true that to be vaccinated or not is entirely the choice of the individual. Nobody can be forcefully vaccinated as it would result in bodily intrusion and violation of an individual's right to privacy, protected under Article 21 of the Constitution.
The Bench placed reliance on Common Cause (A Registered Society) v. Union of India in which the right of an individual was much emphasized upon. The Court had held that the right of an individual to choose how he should live his own life, without any control or interference by others. It recognized the right of an individual to refuse unwanted medical treatment and not be forced to take any medical treatment that is not desired.
The Court further opined –
"Bodily integrity is protected under Article 21 of the Constitution of India and no individual can be forced to be vaccinated";
"Personal autonomy of an individual involves the right of an individual to determine how they should live their own life, which consequently encompasses the right to refuse to undergo any medical treatment in the sphere of individual health,";
"Persons who are keen to not be vaccinated on account of personal beliefs or preferences, can avoid vaccination, without anyone physically compelling them to be vaccinated."
The Bench finally noted –
"Given the issues urged by the Petitioner have a bearing on public health and concern the fundamental rights of individuals in this country, we are not inclined to entertain any challenge to the maintainability of the Writ Petition."
"We are also of the opinion that information relating to adverse effects following immunisation is crucial for creating awareness around vaccines and their efficacy, apart from being instrumental in further scientific studies around the pandemic. Recognising the imperative need for collection of requisite data of adverse events and wider participation in terms of reporting, the Union of India is directed to facilitate reporting of suspected adverse events by individuals and private doctors on an accessible virtual platform. These reports shall be made publicly accessible, without compromising on protecting the confidentiality of the persons reporting, with all necessary steps to create awareness of the existence of such a platform and of the information required to navigate the platform to be undertaken by the Union of India at the earliest," the Court opined.
On the issue of pediatric vaccination, the Court noted that the decision of the Union of India to vaccinate children in India is in tune with global scientific consensus and expert bodies like the WHO, the UNICEF, and the CDC and it is beyond the scope of review for the Court to second guess expert opinion, on the basis of which the Government has drawn up its policy.
In the light of these observations, the Writ Petition was disposed of by the Court.