Point of Law: Covid-19 - Vaccination compulsion - Principal Secretary has clearly stated that existing orders on vaccine compliance may be modified in light of new policy directions as spelt out in guidelines and requirement of vaccination should be directory and not mandatory.

JUDGMENT :

BISWANATH SOMADDER, J.

1. It has been brought to the notice of this High Court that the State of Meghalaya, through various orders of the Deputy Commissioners, has made it mandatory for shopkeepers, vendors, local taxi drivers and others to get themselves vaccinated before they can resume their businesses. 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, is an issue which requires consideration.

2. At the outset, it must be stated clearly and unequivocally that vaccination is need of the hour - nay, an absolute necessity - in order to overcome this global pandemic which is engulfing our world. However, the issue, as stated in the earlier paragraph, requires to be clearly answered.

3. In order to answer the issue, at first, we need to look at certain fundamental principles which govern the field.

4. 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 rights 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 and Others vs. Bombay Municipal Corporation and Others, 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-a-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.

5. The issue here essentially centres around a question on the lawmaking power of the State Government, which, even though permitted by Entry 6, List II of the Seventh Schedule, has to be in consonance with the fundamental right to life and livelihood of an individual. 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 ill-conceived, arbitrary and/or a colourable exercise of power. A notification/order of the State certainly cannot put an embargo and/or fetter on the fundamental right to life of an individual by stripping off his/her right to livelihood, except according to the procedure established by law. Even that procedure is required to be reasonable, just and fair (See Olga Tellis, supra). Till now, there has been no le