Since the coronavirus pandemic began the world has been anxiously waiting for effective vaccines to become available, seeing in it a possible path to normalcy. However, despite the horrors of a raging pandemic and thousands of deaths in the country, a large number of people continue to be sceptical about not only the threat of Covid-19 but the need to get vaccinated against coronavirus.

Such scepticism leads to the question: can the survival of the collective take precedence over the fundamental rights of the individual? This question lies at the heart of the debate regarding mandatory inoculation.

Over the course of the Covid-19 pandemic, several officials, serving and retired, have made statements undermining people’s understanding of the severity of the virus.

These irresponsible statements regarding the coronavirus have encouraged many people to form a dangerous narrative.

The impact of such statements and a pre-existing vaccine hesitancy has been an extremely slow vaccination campaign. According to Our World in Data statistics (based on Pakistan’s National Command and Operation Centre information), approximately 0.4 percent of the country’s population is currently vaccinated.

Vaccine hesitancy is hardly a new phenomenon in Pakistan. In extreme cases, there have been incidents of health workers offering the polio vaccine being attacked.

The finding that as many as 49 percent of people do not plan on being vaccinated against coronavirus, according to the Gallup Coronavirus Attitude Tracker Poll (Pakistan) is hardly surprising.

The global scientific community is of the opinion that the way out of the coronavirus pandemic is through universal vaccination. The hesitancy surrounding vaccination and the lack of the public’s perception of the severity of the coronavirus in Pakistan raise the questions whether mandatory inoculation is the way forward to control the virus in Pakistan.

This question is fraught with legal concerns regarding the individual’s right to bodily autonomy, dignity and privacy under Article 14 of the constitution. Additionally, is there a public health argument to be made in face of the possible legal implications in terms of fundamental rights?

The most obvious argument propounded against mandatory inoculation is grounded in the constitutional safeguard and guarantee of an individual’s right to dignity under which the right to privacy and bodily autonomy may also be included. The right to privacy, as a corollary of the right to dignity, may be violated if vaccination is made obligatory.

In ordinary circumstances the imposition of state-mandated medical treatment may be seen as an infringement of an individual’s constitutionally guaranteed rights. However, in the light of the current public health crisis it is easy to see how the individual’s right to dignity may need to be balanced against “public interest or public health”. It is not just the risk of the individual contracting the virus but also, public exposure to the virus, the increasing pressure on the already frail health infrastructure in Pakistan and the increasing risk of mutation of the virus that must be weighed when making a case that solely protects individual rights at the risk of the welfare of the general public.

A case brought against the Czech Republic the European Court of Human Rights (ECHR) found that the public health argument was a pressing social need that legitimised interference in the right to private life. Based on this, the ECHR while upholding the Czech legislature’s imposition of mandatory vaccination held that obligatory inoculation for preventable diseases that are communicable could be allowed.

Pakistan’s jurisprudence has also tended to favour the view that although fundamental rights are of paramount importance, public order - and in the current instance public health - could take precedence over an individual’s fundamental rights. A democratic state surely cannot allow individual rights to hold precedence over the interests of the larger public and it certainly cannot put at risk the health of the nation to cater to anti-vaccination sentiment that are not supported by the scientific community’s consensus.

Where the individual’s right to dignity exists so does the general public’s right to life in its very basic stripped-down form. A democracy cannot function if the rights of singular individuals are allowed to prevail at the cost of the rights of the entire community. Therefore, the state must act in the interest of the public. Mandatory inoculation is currently the need of the hour.

Currently, Pakistan has no specific legislation in place for mandatory vaccination against the coronavirus. This raises the question that without legislative framework aiding the deviance from fundamental rights would such deviation be possible through the state’s special powers under the Epidemic Diseases Act, 1958. In the past, Pakistan has promulgated legislation — erstwhile West Pakistan Vaccination Ordinance 1958 (promulgated on November 29, 1958) — that imposed an obligation to vaccinate to counter the spread of smallpox.

A risk that the curtailment of rights runs, regardless of the public benefit it favours, is that unhindered restrictions are unlikely to further the very purpose such limitations aim to achieve: public welfare. Therefore, legislation mandating vaccination must not come at the cost of a complete disregard of the fundamental rights, must strictly adhere to principles of proportionality and must only go so far as is necessary to achieve its legitimate aim. Any new or pre-existing framework must consider these key principles while balancing them with safeguards for public health.

Ensuring that the community’s health and survival is the duty of a democratic state and although the individual’s rights are of paramount importance, Pakistan must recognise that public welfare is at stake if inoculation is avoided.

The writer is a practicing lawyer based in Lahore and holds a post-graduate degree in law from the University of California, Berkeley. She may be reached at momna.taufeeq@hotmail.com