COVID-19 Vaccines for Children in India: Legal Perspective

By Ramayni Sood, a 4th Year, B.A., LL.B. (Hons.) student at Amity Law School, Delhi

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Introduction

The #COVID-19 pandemic has brought with it times where child rights have been completely neglected. Children in India are battling against the deadly coronavirus in addition to the stress of coping with online education in these circumstances, where many are losing family members and close relatives. It is noticeable that the government and educationists in India have been functioning according to their whimsical timelines while dealing with child-related issues. For instance, recently, board examinations for Class 10 and 12 students across the country were cancelled after the students were left on a cliffhanger for months. Another such issue that's been overlooked is the lack of clarity on vaccination for children below the age of 18 years. The government of India has systematically allowed vaccinations for different age groups since January 2021. Most recently, people between the ages of 18 and 45 were made eligible to get vaccinated. One can note a hierarchy that the government has followed. The vaccination drive started with the most vulnerable groups; first, the health care workers, whom people above 60 years followed, and those with co-morbidities. However, there is little clarity regarding the status of vaccines for children below 18 years in India. Are they not vulnerable?

When one looks at the issue of lack of clarity on vaccines for children, it seems like a standalone health-related concern. However, when it is seen in the backdrop of prevailing circumstances since March 2020, one realizes that it has far more profound implications than acknowledged. It is a chain; non-vaccination implies continuity of social distancing norms that have been followed since the past year, like non-reopening of schools, that further leads to lack of socialization at the tender ages when children develop their personality. When this is coupled with the stress of online education, fear of the virus and the post-traumatic stress left by the deadly second wave in India, the situation of children can be termed precarious. Most Indian children face this stress coupled with the financial troubles of their families and the lack of resources to access online education. Thus, there is an undeniable effect of the non-vaccination of children on their mental health.

This article aims to analyze the various facets of the issue of non-vaccination of children and scrutinize the legal aspect of the efforts of the government to vaccinate children in India.

State Responsibility

Article 21 of the Indian Constitution guarantees every person a right to life as a fundamental right. Right to life does not mean mere survival or animal existence; instead, it has been accorded the widest interpretation by the Supreme Court. In cases such as State of Punjab v. Mohinder Singh Chawla and Others, it has been reiterated that the right to life includes within its ambit the right to health, which is an inherent and inescapable component of a dignified life. This right to health is not merely a remedy. It imposes an obligation on the State to ensure the existence of adequate public health provisions.

Part IV of the Indian Constitution enlists the Directive Principles of State Policy. It reflects the legislative intent to shape India as a welfare State. This implies that all State action must be directed towards achieving the goals enlisted in Part IV. However, as held in D.S Nakara and Others v. Union of India, only when the State successfully achieves the objectives under Part IV can we claim that a welfare State has been set up. When article 21 is read in tandem with the Directive Principles of State Policy, it is apparent that the Constitution dictates the State to be responsive towards citizens’ healthcare, especially children. Furthermore, article 39(f) of the Constitution talks of the right of children to enjoy equal opportunities and facilities to develop healthily. Even though Part IV is not enforceable by any court, article 37 of the Constitution imposes a duty on the State to apply the said principles for governance.

Thus, the State must ensure adequate healthcare, especially for children because, firstly, the right to health is incidental to the right to life and; secondly, it is a welfare measure in furtherance of establishing a successful welfare state.

Status of Vaccination

In a recent parliamentary meeting on 27th July 2021, the Union Health Mister, Mr. Mansukh Mandaviya, stated that children are likely to start getting vaccinated from next month, i.e. August 2021. However, it has been noted that the same is a tentative date as vaccination trials by Bharat Biotech’s Covaxin are currently underway. Thus, there are chances that the estimated time may shift to September 2021.

A Writ Petition was filed before the Delhi High Court that sought directions to allow children between 12 to 17 years to get vaccinated immediately. The case was filed in line with article 12 of the United Nations Convention on the Rights of the Child, which recognizes the government’s obligation to ensure the voices of children are heard. The Petition also prayed to formulate a National Plan that covers all aspects related to protecting children from Covid-19. The Central government clarified that the Bharat Biotech vaccination was undergoing trials for children. It was held that trials were essential and could not be made timebound, leading to disasters. However, instead of dismissing the Writ, the court re-notified it for 6th September to track the status of trials as the issue was noted to be of great concern. With respect to the second contention, the court noted that the Center has “failed to prepare a National Plan for children in adherence to the guidelines as given under the National Disaster Management Plan 2019, formulated under the Disaster Management Act 2005, which clearly recognize children and their vulnerability during a ‘biological disaster’, such as the present COVID pandemic”.

While the world continues to debate whether children should be vaccinated or not, we see two significant views that have emerged. Some countries like the United States have approved vaccinations for their child population above 12 years. In contrast, United Kingdom has delayed vaccinations for adolescents under sixteen years of age unless they are in the high-risk category. Vaccinations like Moderna and Pfizer, amongst others, have successfully completed trials and have been declared safe for adolescents. However, they have not been given the go-ahead by the Indian government, and they still await approval.

Analysis

When one analyses the position of vaccinations for children in light of the State obligations under Part III and IV of the Constitution, we note extreme inadequacy on the part of the authorities. While scientific processes like vaccination trials cannot be sped up and the same are not in the control of the government, the lack of proactiveness to find quick solutions can be seen in their approach. Non-preparation of a National Plan for children is a testament to their lackadaisical approach.

Foreign vaccinations like Pfizer and Moderna that have been clinically approved for adolescents have been awaiting approval from India for a few months now. Some argue that vaccination approvals are a matter of policy concern. Therefore, it is expected that legal approvals take their own sweet time; however, it must be emphasized that the world currently faces exceptional circumstances that require quick solutions. Experts await the third wave of Covid-19 in India soon. Medical professionals have noted that children will be especially vulnerable to the new variant of this deadly virus.

From a right to health standpoint, the need for proactivity can be seen as vaccinations for children seem to be lost in the government's priority list. A welfare government must ensure that adequate healthcare is available to Indian citizens. The provision of vaccinations during a health crisis such as this is squarely covered within that obligation. Unfortunately, we see politics taking precedence over issues that will have dire consequences if not solved. Acknowledging the limited role of the government in speeding up vaccine trials in India, one still cannot deny the casual approach towards this issue. India awaits decisions on the approval of medically approved foreign vaccinations administered to children worldwide and the status of the Bharat Biotech vaccine trials. Either way, a clear stance and swift approach are a must, which can be ensured through judicial pressure. The judiciary must resume the proactive role that it played during the second wave of Covid-19 in India. It must ensure that all government machineries are held accountable for their actions, and all decisions on the issue of vaccines for children are taken while maintaining transparency. Clarity on the subject and answerability is the first step towards solving this crisis that continues to haunt the country.

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(Disclaimer- The views expressed in this article are those of the author and do not necessarily reflect the views or policies of the Child Rights Centre.)