‘Need official body to certify those who can’t take Covid-19 vaccine’, say legal experts

Legal experts stress need for body to issue exemption certificate to those unable to take shot over medical reasons, to avoid harassment

After healthcare experts, legal brains, too, insist on the need for a competent authority for issuing ‘certificate of exemption’ to those who cannot take the Covid-19 vaccine on medical grounds. 

mid-day had, in an article on December 1, stated how the fundamental rights of those with neurological issues and vaccine allergies were not being addressed while drafting directives for the public, and also stressed on the need for appointment of a competent authority to certify such people. Solicitor Stuti Galiya said, “The Union Ministry of Health and Family Welfare has, from time to time, clarified that vaccination for Covid-19 is voluntary, but it is advisable. In spite of this, many state governments and local authorities have been issuing various guidelines such as public transport, ration, etc to be allowed only to fully vaccinated people. When the Centre has made vaccination voluntary, the question is if states can compel their citizens to undergo vaccination by introducing such restrictions which indirectly mandate vaccination?”

Stuti Galiya, solicitor

Vaccine is voluntary

Stuti added, “In India, ensuring public health is a Directive Principle of State Policy (DPSP) under Article 47 of the Constitution. Hence, the Centre has left the matter on the state to issue necessary policy while maintaining a balance between human rights of an individual and public health rights of the collective. Many countries across the globe have made Covid vaccination compulsory and have introduced similar restrictions on unvaccinated people from accessing any sort of public services. There are debates on both sides of the story; however, it would be important that when vaccination is made compulsory (either in direct or indirect manner), suitable exemptions are also put in place for those with genuine reasons. For example, certain individuals cannot take the vaccine for health-related reasons. There must be an alternative in place for those who may develop an allergy or a life-threatening response to the vaccine. Instead of getting vaccinated, a regular and timely testing process may be made available for those exempted from the vaccine mandate.”

She continued, “Further, it would be important to establish a regulatory body who can certify the genuineness of the reasoning provided for claiming exemption from vaccination, backed by appropriate documentary evidence. Apart from this, state authorities will also need to take steps to create awareness about the pros and cons of vaccines and build trust to ensure that vaccine hesitancy, especially in rural India, is suitably addressed.”

Need a body for certification

A Supreme court counsel requesting anonymity said, “There needs to be a body to certify patients with allergies who may, by virtue of such allergy, be unable to take the vaccines. Further, there may be people who may have already had allergic reactions to earlier vaccines and may thereby be unable to take the vaccines. There needs to be exemptions for such categories of people. While vaccinations are a necessity given the ongoing pandemic, there may be cases where it is simply not possible. Such cases need to be examined and exempted.”

“It is still being discussed that the vaccine is purely voluntary. The question of personal liberty and the right to choice shall come into consideration. Such directives would effectively change the very nature of it being voluntary,” the counsel said.

SC order 

Advocate Rajeshwar Panchal, who practices in the Bombay High Court, said, “In the Aruna Shanbag case, the Apex court held that the right to life included not only to take any particular treatment but also refusal to take it. Vaccination is a treatment. Whether to take it or not is a fundamental right guaranteed under Article 21 of the Constitution. Secondly, the government itself has not made it mandatory, nor has it taken any responsibility of payment for compensation in cases of side effects which can be dangerous. Thirdly, there is no source of power with the government to issue such orders violating fundamental rights.”

“If the government is tracing such powers in the Epidemic Diseases Act, for taking measures to prevent the pandemic, then the Act also provides for compensation to be paid for the loss caused to the public by such measures. Importantly, if the Central government has not taken any responsibility of paying compensation, then the state government must take such responsibility,” advocate Panchal said.

47
Article in Constitution that states health is a state subject

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