The Viewpoint: Contemporary role of consent in the age of masks and vaccinations

The COVID-19 pandemic has created a conundrum with regard to striking a balance between obtaining consent for vaccinations, testing, wearing of masks, compulsory download of the Aarogya Setu application for entry and exit at certain public places and in general, public health.

Therefore, the importance of consent vis-à-vis the fundamental right to life and health of citizens, and whether the former supersedes the latter, is an important focal point.

What is Consent? Perspective as per Indian and UK Laws

As per the Indian Contract Act, 1872, when two persons agree to the same thing in the same sense and such agreement is free and uninfluenced by external factors, ‘consent’ is said to be present. Over time, there has been an increase in jurisprudence, defining several factors that lead to consent, including consent of minors etc.

Parallelly, ‘consent’ in the United Kingdom means, "…if he agrees by choice, and has the freedom and capacity to make that choice." The UK definition provides for two essential components – ‘choice’ and ‘freedom of choice’.

Consent plays a vital role in medical procedures and treatments, which if not obtained by the respective healthcare personnel, is punishable as battery under criminal law and Tort Law. The ongoing vaccination drives ideally also require consent of citizens and are available only for people above the age of 18.

Mental capacity to Consent

As per the UK COVID–19 Vaccination Guidelines, inoculators need to ensure that ‘informed consent’ is obtained from the individual receiving vaccination or the person acting on his behalf, and the same needs to be recorded appropriately before vaccination. In situations involving mentally incapacitated patients, all practical steps must be taken to support the individual making such a decision and if the individual is still incapable of giving consent, the individual who is to act in the best interest of such person, is to take the decision.

In India, consent for administering vaccines is obtained upon citizens registering themselves on the CoWin website and there is implied consent when vaccination is received at a hospital for those who receive vaccinations without registration on CoWin. For persons who are mentally incapable of providing consent, the Supreme Court issued an order holding that guidelines with respect to vaccinating mentally ill patients who are institutionalized, are required to be chalked out by the respective state governments. The Court also emphasised on the need to vaccinate such persons to ensure their protection.

Vaccination: A personal choice?

The choice to receive vaccination is completely voluntary, as made clear by the Union Ministry of Health and Welfare against the order of Gujarat Technical University, which had made it mandatory to be vaccinated to appear for examinations. The Ministry, in a Right to Information (RTI) response, replied that vaccination is a voluntary decision of an individual. Though it advised people to get the vaccination, it said that the same cannot be imposed on a person.

The case for individual autonomy as part of the fundamental right to life under Article 21 of the Constitution has been established by the Supreme Court in Justice KS Puttaswamy (Retd) and Anr v. Union Of India And Ors. In this light, it can be inferred that making vaccination mandatory amounts to deprivation of the right to life. By forcing vaccinations on citizens through coercive measures, the State would also deprive them of their right to decisional and bodily autonomy, and thereby, violate their right to privacy. Therefore, there is the presence of ‘choice’ with respect to receiving vaccination, and it cannot be enforced on the citizens.

Wearing of masks: Diminished element of choice

In the recent wake of events, UK as well as US have notified that people who have been completely vaccinated are not obligated to wear masks, and it is now a matter of personal choice to wear a mask. However, in India, there is a strict requirement for wearing masks (whether or not individuals have been inoculated). In Uttar Pradesh, penalties ranging from ₹1000 to ₹10,000 have been imposed on citizens who do not wear masks. Similar measures are followed by other states as well. These restrictions are imposed in light of a significant portion of the population not being vaccinated, while many are still hesitant to receive vaccination.

The Karnataka High Court observed that the ‘Right to Healthy Life’ is protected under Article 21 and urged for strict measures against people who obstruct this right of others by not wearing masks. The Court added that the fundamental right to healthy life of an individual cannot be obstructed by individuals who do not bother to wear masks and follow rules.

The right to health and healthcare are facets of the right to life under Article 21 of the Constitution of India. The Bombay High Court recently held,

“Article 21 of the Constitution of India imposes negative as well as positive ‘obligation’ upon the State not to interfere with the right to health, but also to take positive steps to provide adequate resources or access to treatment facilities to secure effective enjoyment of right to health.”

Thus, the strict measures taken up by the State against people for not wearing masks is a correlative duty cast on the State for ensuring the right to life of the public. Therefore, the obligations to wear masks stands over and above the necessity to obtain consent for the same.

Receiving vaccination therefore, is a choice wherein an individual can exercise their consent, while wearing masks are necessary and the element of choice gets diminished vis-à-vis penal measures. The Supreme Court has specified that people who are not wearing masks are violating the fundamental right to life of other people. The Court provided for strict enforcement guidelines against people not wearing masks in public.

Conclusion

India has adopted an approach close to the UK model of vaccination i.e., respecting ideals involving voluntary vaccination. However, it becomes essential to understand that the right to life is provided to all and certain actions of one person can have an alarming affect over the other person’s fundamental right to health.

The US, on the other hand, has adopted strict and mandatory models of vaccination to control the widespread growth of the virus. However, it is undecided by the Legislature and the Judiciary on whether to apply strict policing over vaccination as it has applied to wearing of masks. While it may be argued that consent is vital and wearing masks/subjecting one to vaccination is an intensely personal choice, these must be measured in terms of right to life/health of all persons and not just an individual.

The authors are Partner and Associate respectively, with Shivadass & Shivadass (Law Chambers). The authors would like to acknowledge the contributions of Divyansh Bhardwaj, a third year law student from National Law University, Odisha.

The contents and comments of this document do not necessarily reflect the views/position of Shivadass and Shivadass (Law Chambers) but remain solely of the author(s). For any further queries or follow up, please contact admin@sdlaw.co.in.