Before the Indian Supreme Court By Ian Wilson LL. B
Here is a fascinating, easy to follow summary of the case put before the Indian supreme court by advocate Prashant Bhushan, that a person’s basic human rights gives them the right to refuse the Covid vax, and the state cannot compel them to be vaxxed. The issue is an individual health, not a public health decision. “For an unvaccinated person to be considered a health hazard, I must pose a clear and present danger to others. To eclipse my fundamental rights, there must be first a clear proof that I pose a public danger. Here, even vaccinated people transmit the virus. So, the only issue is my individual health,” he maintained. And in fact, the Covid vax has dangers, even from the perspective of public health: “Vaccines are creating more variants of COVID-19 virus. Mass vaccination creates more variants when the virus tries to escape the effects of the vaccine. Over 90% of the population have already got COVID after the Omicron wave. They now enjoy superior and more robust protection from those who are vaccinated. So why insist on vaccination? I have an absolute right to refuse to take any medicine which I, after study, feel would do me more harm.”
As far as I am aware, this issue did not get to the High Ccourt of Australia. If it did, what would the Court have decided? Judging by cases like Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320, in the Supreme Court of New South Wales, which held that the NSW public health orders mandating Covid vaccination for some workers were not unlawful. Many not versed in case law read section 51xxiiiA of the Australian constitution, that does not permit any form of “civil conscription” regarding medical and dental services, as constituting a ban on any form of mandatory vaccination. The High Court of Australia (Wong v Commonwealth; Selim v Professional Services Review Committee (2009) 236 CLR 573), defined the scope of this section as referring to federal laws requiring providers of medical and dental services to work/be conscripted for the state. Nothing in the cases addressed present vaccination concerns.
“The Supreme Court on Wednesday asked the government to respond to advocate Prashant Bhushan's "important" argument that a person has an absolute right to refuse COVID vaccine and States cannot compel them to take the vaccine on the pain of denying them basic rights.
Appearing before a Bench of Justices L. Nageswara Rao and B.R. Gavai, Mr. Bhushan said though the Centre had made vaccination voluntary, several States had issued notification making vaccination mandatory by denying basic rights and services to people who are not inoculated against the virus. Even children were denied access to schools if they or their parents were not vaccinated. He referred to reports that children, who have very little chance of contracting the virus, are showing symptoms of myocarditis after vaccination.
Mr. Bhushan, who is himself not vaccinated, said the decision whether or not to get inoculated solely concerns individual health and not public health as vaccinated people, like their unvaccinated counterparts, continue to get and transmit the virus. In fact, he argued, people armed with natural antibodies after surviving a COVID attack show better resilience.
‘Individual health’
“For an unvaccinated person to be considered a health hazard, I must pose a clear and present danger to others. To eclipse my fundamental rights, there must be first a clear proof that I pose a public danger. Here, even vaccinated people transmit the virus. So, the only issue is my individual health,” he submitted.
Mr. Bhushan, appearing for Dr. Jacob Puliyel, a former member of the National Technical Advisory Group on Immunisation, said the government had neglected to get an informed consent from people about vaccination by being opaque about vaccine trials and by not putting the entire data and inconsistencies up for public and independent scientific scrutiny.
“Vaccines are creating more variants of COVID-19 virus. Mass vaccination creates more variants when the virus tries to escape the effects of the vaccine. Over 90% of the population have already got COVID after the Omicron wave. They now enjoy superior and more robust protection from those who are vaccinated. So why insist on vaccination? I have an absolute right to refuse to take any medicine which I, after study, feel would do me more harm,” Mr. Bhushan argued.
He contended that though “vaccine does prevent, to some extent, people from becoming ill, people who are healthy hardly have any chance to suffer COVID, and nobody knows the long term effect of the vaccine. If vaccine does not anyway prevent the transmission of the disease, there is no point mandating vaccine as a precondition to access basic rights and services”.
‘No significance’
Countering for the government, Additional Solicitor General Aishwarya Bhati said 96.8% of the population had already taken their first dose and 80% their second dose. Mr. Bhushan’s contentions were of no significance at this stage. Ms. Bhati said Mr. Bhushan’s “tall claim” about children showing symptoms of myocarditis had no relevance as the vaccine administered to them in India was Covaxin which contained dead or inactive virus.
Justice Rao, addressing Mr. Bhushan, said that he might be taking the court into the “deep realms of science” and judges were not scientists. “Science is a matter of opinion… Your opinions on vaccination may not be shared by others,” Justice Rao told Mr. Bhushan.
“We do not have basic knowledge about this… As far as we have heard there is an opinion that protection from natural antibodies is very high. Another opinion is that after the vaccine shots, the effectiveness of antibodies goes up 50 times… So, it is a matter of opinion,” Justice Gavai said.
Justice Rao said many suffer from co-morbidities, and vaccines help.
However, the court said it was ready to go in for a “limited enquiry” into the question whether the decision taken by the States to make vaccination mandatory was based on relevant data or executed arbitrarily.
“What you are saying is that the Union is stating that vaccination is not mandatory. On the other hand, States are indirectly mandating it. That is what you are saying?” Justice Rao asked Mr. Bhushan.
“Yes, can there be vaccine mandates. Where is the informed consent taken from people? Where is the data?” Mr. Bhushan asked in return.
The senior lawyer said his arguments were based not on opinions but scientific data and rulings of the courts in other countries like New Zealand.
“Before I take medicine, I have to give consent. Consent should be informed. For it to be informed, I need to have all the data placed before me. Trial data has to be released in order to be studied. Otherwise, trials are conducted by the pharmaceutical companies. They will hide inconsistencies. Data need to be released to be studied by independent scientists,” Mr. Bhushan argued.
The court asked the government to place its response in an affidavit by Saturday and posted the case for March 8.”
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