In this Chambers Expert Focus article, Nohid Nooreyezdan discusses how the Supreme Court tackled the tension between State Government orders for mandatory COVID-19 vaccinations and constitutional rights – and what this means for employers in India.

On 2 May 2022, in the case of Jacob Puliyel v Union of India and Ors, the Supreme Court (the “Court”) considered the validity of governmental vaccine mandates under Article 21 of the Indian Constitution, which concerns the protection of life and personal liberty. Although the judgment did not directly apply to employers, it does have potential implications for private establishments.

The Court’s Ruling

Petitioner Jacob Puliyel challenged the restrictions on access to resources, public places and means of earning a livelihood that had been placed on unvaccinated individuals by state governments, educational institutions and other employers. Puliyel’s challenge stemmed principally from a lack of scientific proof that unvaccinated individuals pose a greater risk of transmitting COVID-19 than vaccinated persons.

After considering this issue, the Court found that the government’s vaccination policy is reasonable and in the public interest – particularly in light of clear evidence that vaccines afford stronger protection against more severe illness, the need for hospitalisation, and the possibility of death. However, the main question in this case was whether the government could mandate vaccinations as a condition to access resources and spaces.

The Court’s examination of coercive vaccinations in relation to personal autonomy was two-pronged, focusing on the main ways the rights enshrined in Article 21 of the Indian Constitution had potentially been compromised.

Limitations on personal autonomy through forceful vaccinations

The Court noted that forcible vaccinations would offend Article 21 because they constitute bodily intrusions and violations of privacy. Furthermore, the right to refuse unwanted medical treatment is a facet of personal autonomy. However, as the Central government had made it clear that vaccinations are purely voluntary, there was no element of coercion on its part in this regard.

Limitations on personal autonomy by restricting access to spaces, resources and services on the basis of vaccination status

Restrictions on personal autonomy are only valid if they are in line with and proportional to the end result that they are designed to achieve. The Court observed that breakthrough infections were found even among the vaccinated as the virus mutated. Scientific evidence also supported the view that an unvaccinated individual does not pose a significantly greater danger of transmitting infections than a vaccinated person.

In light of this, the Court found that such restrictions were not proportionate and individuals may therefore choose to refrain from vaccinations on the basis of personal beliefs or preferences. That is, at least until scientific proof emerges to support the argument that a lack of vaccination increases the risk of spread, contributes to mutations of the virus, or is likely to overburden public health infrastructure.

The Court clarified that this would not prejudice other pandemic-related conduct presently prescribed by governmental authorities. Indeed, neither will this ruling affect executive power to take future restrictive measures against unvaccinated people – as long as such restrictions are reasonable and proportionate.

What are the Implications for Employers?

At the outset, it should be noted that the Court confined its examination to whether or not the government’s vaccination policy limited individual rights. Therefore, the judgment is not directly applicable to private sector employers. However, the Court suggested that all authorities in the country, including private organisations and educational institutions, review their orders imposing restrictions on unvaccinated individuals’ access to public places, services and resources. This would mean that the judgment could have an impact on private entities as well.

Does this apply to private establishments?

Many employers, even in the case of private establishments, have shaped their COVID-19 policies on the basis of state regulations. The government of the western Indian state of Maharashtra, for example, ordered on 27 November 2021 that all shops or establishments where members of the public had the right to enter and avail of services must be staffed with fully vaccinated persons. However, mandatory vaccinations were not required for employees in other private offices that were not open to the public.

Government orders by the states of Maharashtra and Tamil Nadu have also required vaccinations for frontline workers, healthcare workers and teachers in order to access their offices and institutions. In addition, only fully vaccinated individuals were permitted to enter shops and establishments, malls, public transport, schools, colleges, hostels, boarding houses and factories in these two states. Therefore, governmental regulations have had impact on access to public places, services and resources. They have also affected private spaces where goods or services are offered by private establishments to the public.

The Court considered the above-mentioned orders in its final ruling, thereby impacting all orders that require any person (whether employee, consumer or otherwise) to be fully vaccinated before entering public places and even private places where the public has rights to access services or resources.

Should employers exercise discretion?

Since the judgment, governments have revoked mandatory vaccine orders considered disproportionate under the Court’s ruling. Employers in the realm of private transactions have therefore lost an explicit legal basis for requiring employees to be vaccinated. Although this will not make an employer’s orders illegal, restrictions that persist without more justification are likely to lose legitimacy in the eyes of employees and could lead to challenges.

An employer has a duty of care to its employees, which means it must take all reasonable steps to make sure the workplace is safe. However, the Court’s ruling reinforces the idea that vaccinations do not make a significant difference to transmission rates. Their necessity should therefore be considered in the context of an individual’s right to accept or refuse measures that impact their individual autonomy.

Given that vaccinations have not yet been proven to make the workplace safer by reducing transmission, employers may want to tread carefully when formulating internal policies, so they do not appear discriminatory or disrespectful when it comes to personal beliefs.

The Outlook

The vaccine mandate judgment attempted to strike a fine balance between personal autonomy and public health interests. However, two aspects should be emphasised. First, the absence of a direct reference to the purely private sphere allows employers looking to provide a “safe” environment for all employees a margin of discretion. Second, the findings are limited to the present context. Therefore, if new scientific evidence emerges, so could sufficient justification for enforcing vaccine mandates.

[Suggested pull quotes:

“Governmental regulations have had impact on access to public places, services and resources.”

“The Court’s ruling reinforces the idea that vaccinations do not make a significant difference in transmission rates.”

“This will not affect executive power to take future restrictive measures against unvaccinated people, as long as such restrictions are reasonable and proportionate.”

“Employers may want to tread carefully when formulating internal policies.”

“If new scientific evidence emerges, so could sufficient justification for enforcing vaccine mandates.”]