EL TRIBUNAL SUPREMO DE LA INDIA Y LAS OBLIGACIONES DE VACUNACIÓN COVID (I)

On May 2, in a landmark judgment, India’s Supreme Court, the highest court in the land, ruled that “no one can be forced to be vaccinated” and that “bodily integrity and personal autonomy” are protected under the law as a constitutional right. Citing emerging scientific opinion “which appears to indicate that the risk of transmission of the virus from unvaccinated individuals is almost on par with that from vaccinated persons,” the judicial bench went on to argue that since infection rates are currently low, restrictions imposed on the unvaccinated, including those that curtail their freedom of movement and access to welfare and other services, are not “proportionate,” and urged organizations that imposed these restrictions to review these measures and modify them as necessary.

The court was responding to a plea filed by a former member of the country’s national advisory group on immunization, seeking disclosure on vaccine clinical trials and the posting of vaccination-adverse events data. The plea argued that Indian states’ legislation mandating vaccination for government employees and as a precondition for accessing welfare and other services, including travel in public transport, was a violation of basic individual rights and, therefore, unconstitutional.

The federal government in India itself has not issued any vaccine mandates and has always maintained that it is a voluntary, individual choice. The judgment was rendered even more extraordinary by the fact the directives were limited to the “present situation alone,” and the court upheld government restrictions on the unvaccinated “if the situation so warrants,” thereby striking a delicate balance between a person’s right to choose and the government’s responsibility in protecting public health.

What is fascinating is that this extraordinary Supreme Court judgment in India is in the context of a Westminster system, a system originating in the United Kingdom but also, of course, shared by Canada. Unlike in the United States, with its tradition of activist courts that are not shy to push back against the executive or legislature, and are highly protective of constitutionally enshrined civil liberties, the Indian judicial system, like the British and Canadian systems, tends to exhibit a culture of deference to Parliament.