/>iThe Chief Commissioner of the Bruhat Bengaluru Mahanagara Palike (“BBMP”) has issued a circular dated August 26, 2021 (“BBMP Circular”), casting an obligation upon employers of commercial establishments/industries/hotels & restaurants and other offices within the BBMP jurisdiction to ensure vaccination of their employees at its own cost.
In view of the reduced number of COVID-19 infections in Bangalore (also known as Bengaluru), the Karnataka state government had previously allowed operation of most commercial establishments, subject to compliance with the COVID-19 protocols. However, in view of the high chances of COVID-19 transmission in closed workspaces once employees return to work, the BBMP Commissioner issued the BBMP Circular mandating employers in Bangalore to inter alia ensure that: (a) all employees have completed at least one dose of their COVID-19 vaccination (by August 31st, 2021); and (b) the cost of vaccination for employees is borne by the employer. Once employees have returned to work, employers are also required to conduct regular COVID-19 testing of its staff in order to keep the infection spread under bay.
The BBMP Circular authorizes BBMP marshals and health officials to enter the workplace during working hours with effect from September 1, 2021 for verifying compliance with the above requirements and employees are required to maintain proof of their vaccination status and produce the same as and when required by the authorities[1]. Any violation of the BBMP Circular may subject the employer to penalty besides being punishable under Sec. 188 of the Indian Penal Code, 1860 as provided under the Epidemic Diseases Act, 1897 (that is, the penal provision for disobeying an order duly promulgated by a public servant).
While other state authorities in India have not placed a similar onus upon employers, there have been similar mandatory vaccination orders by the state governments and in this article, we seek to explore the debates surrounding such mandatory vaccination orders by the government
Background
The Tamil Nadu state health authority had earlier issued directions mandating the district health authorities to enforce certain directions for workplaces inter alia including direction for mandatory vaccination of all staff and family members of the workplace with two doses of Covid-19 vaccine.1. Likewise, the Madras High Court had reportedly directed the State of Tamil Nadu to ensure that all transgender persons were compulsorily vaccinated against COVID-19 within three months as a beneficial measure and in response to a public interest litigation filed in that respect[2]. Earlier in June 2021, the Gujarat state government had also directed all owners and persons engaged in commercial activities to get their first dose of Covid-19 vaccine within a specified deadline which had also garnered mixed response from the general population in Gujarat especially at a time when vaccine shortages were being reported across the country.[3] Eventually the deadline had to be deferred with industry bodies in Gujarat making representations seeking for extension of the deadline.[4] Likewise, in Meghalaya, Manipur, Mizoram and Nagaland the state government had issued some orders mandating certain individuals such as shopkeepers, vendors, local taxi drivers and others to get themselves vaccinated before resuming business.
Analysis
As India and the world at large is at the cusp of a historic health crisis, keeping in mind the common good, health and safety of its population at large, the government is now persuaded to impose vaccination mandates. Accordingly, the state governments have been issuing mandates to ensure vaccination of individuals in different spheres of life. However, the constitutional validity of such mandates continues to remain debatable, especially since the Indian government had made vaccination ‘voluntary’ for individuals.
Recently, the Meghalaya High Court also passed a judgment declaring a compulsory vaccination mandate by the Meghalaya state government as unconstitutional[5]. Subsequently, the same matter was litigated in the north-eastern states of India and different benches of the Gauhati High Court (state of Assam) have taken the position that no one can be compulsorily vaccinated. In this respect, the Aizawl bench of the Gauhati High Court in the matter of In Re Dinthar Incident Aizawl v. State of Mizoram and Ors.[6] referring to the aforesaid Meghalaya High Court judgment opined that ‘though vaccination is an absolute necessity, a harmonious and purposive construction of the provisions of law and the principles of equity, good conscience and justice reveals that mandatory or forceful vaccination does not find any force in law leading to such acts being liable to be declared ultra vires ab initio’. At the same time, it appears that the Supreme Court of India has refused to impose an interim stay on compulsory vaccination in order to avoid aggravating the problem of vaccine hesitation already prevailing in the country and accordingly the matter remains sub-judice.[7]
In view of the afore-said legal jurisprudence in India and given the fact that vaccinations in India continue to remain a personal choice at this point in time, it is legally unclear on what basis local governments can hold employers liable if the employees themselves choose not to be vaccinated in spite of the employer having incentivized or informed employees in this respect or otherwise having organized vaccination camps or reimbursing the vaccination cost or facilitating vaccination of its employees. In fact, the Ministry of Health and Family Welfare continues to state in its FAQs on COVID-19 vaccination[8] that vaccination in India is voluntary for individuals.
Accordingly, it remains to be seen whether continued employment can be linked to vaccination and can an employee’s refusal to be vaccinated be a legal basis for terminating employment as a case of insubordination or otherwise, as it could in turn be seen to deny the employee’s livelihood? Such a circular in our view could also potentially be challenged on the basis of being violative of Article 21 of the Constitution of India, which encompasses the fundamental right to life and personal liberty. Having said that and until there is further clarity on this matter, employers are advised to permit only fully vaccinated employees at their workplaces which in a way is also consistent with the employer’s legal and ethical duty of care.
[1] Guidelines issued by the Tamil Nadu Director of Public Health dated July 24, 2021 available at: https://drive.google.com/file/d/1GNLtFc-QTnhx1_QPmFd56aTeCPlFWdRk/view?usp=sharing
[3]https://www.thehindubusinessline.com/news/national/gujarat-asks-all-shop-owners-staff-in-big-cities-to-get-vaccinated-by-june-30/article34974039.ece
[4] https://timesofindia.indiatimes.com/city/ahmedabad/vaccination-deadline-for-traders-extended-to-aug-15/articleshow/84933671.cms#:~:text=Ahmedabad%3A%20The%20state%20government%20on,vaccine%20dose%20is%20August%2015.
[5]Registrar General v State of Meghalaya [PIL No.6/2021]
[6]WP(C)/37/2020
[7] https://www.indiatoday.in/law/story/supreme-court-centre-notice-covid-vaccine-trial-data-compulsory-vaccination-1838646-2021-08-09
[8]https://www.mohfw.gov.in/covid_vaccination/vaccination/faqs.html
