The Supreme Court recently dismissed a plea seeking modification of the Indian government’s COVID-19 policy to allow voluntary re-vaccination of persons who have been vaccinated with Sputnik V. The petitioner, a recipient of Sputnik V, is unable to go overseas since the World Health Organization (WHO) had not yet certified Sputnik V in its approved list of vaccines. The petitioner was directed to make a representation before the Union Ministry of Health and Family Welfare in this respect.
Constitutional right to travel abroad
The court did not fully appreciate the existing constitutional jurisprudence while dismissing the writ petition. The right to life under Article 21 of the Constitution does not have a mere black-and-white legal meaning. Whilst undoubtedly referring to an individual’s right to live, it means much more than the right of an individual to survival. A person must embrace all of life’s facets in order to fully live. The right to live a fulfilling and respectable life is known as the right to life.
In Maneka Gandhi v. Union of India (1978), the Supreme Court said “personal liberty” in Article 21 is “of the widest amplitude” covering “a variety of rights which go to constitute the personal liberty of man”. Earlier, in Satwant Singh Sawhney v. D. Ramarathnam Assistant Passport Officer (1967), the right to travel abroad was read as an intrinsic part of Article 21. The Supreme Court has time and again reiterated this right to travel abroad. As recently as 2020, the Supreme Court, in Parvez Noordin Lokhandwalla v. State of Maharashtra, held that the right to travel abroad is a part of the fundamental right to dignity and personal liberty. Interestingly, the Supreme Court in Satish Chandra Verma v. Union of India (2019), whilst reiterating the right to travel abroad, went on to equate it to be a basic and as genuine a human right as the right to marry and have a family. Thus, there is no doubt that it is settled jurisprudence that an Indian citizen has the freedom to go anywhere, work anywhere, and live anywhere. The only way this may be restricted is if the law forbids someone from doing so. Such a law too would be subject to scrutiny by the court under the constitutional parameters of ‘reasonableness’. This well settled Indian jurisprudence of the right to travel abroad finds support in international law as well. Article 12 of the 1966 International Covenant on Civil and Political Rights guarantees freedom of movement, including the right of persons to choose their residence, to leave and return to a country.
Negative view towards Russia
In light of the above, the Supreme Court ought to have appreciated the fact that there is no law preventing an Indian citizen from travelling abroad for work, education or leisure. It should have equally appreciated the negative views towards Russia in the context of the Russian invasion of Ukraine. Russian manufactured products, including vaccines, do not find acceptability in most parts of the world. Sputnik V was already facing a difficult rollout. The sanctions against Russia have further hindered the use and distribution of the vaccine. Sputnik V is not accepted as valid proof of immunity in the U.K. and the U.S. There are severe restrictions in the European Union (EU) for EU and non-EU citizens vaccinated with it. Thus, lakhs of Indians who wish to visit these countries cannot do so. For all practical purposes, an individual vaccinated with Sputink V is regarded unvaccinated.
Apart from the global opinion being against the Sputnik V vaccine, the Indian vaccination programme has exacerbated the problem. Despite the National COVID Vaccination Program in India being based on epidemiological and scientific research, WHO recommendations, and international practices, the COVID-19 policy has not been changed by the government to allow for voluntary re-vaccination of persons who have received the Sputnik V vaccine and wish to go abroad. Even CoWIN prohibits any re-vaccination of persons with a different vaccine after one or two doses have been administered. Last year, an NRI employee at a Saudi Arabian company was unable to return to his job from Kerala because he had been given Covaxin, which was not yet authorised in the Gulf nation. The issue was brought before the Kerala High Court which said that the citizen’s basic rights were being violated and his right to movement was being restricted.
The Supreme Court ought to have appreciated the right of an Indian to travel abroad emanating from settled jurisprudence as well as the prevailing global opinion against Russia. Furthermore, it should have taken into consideration concerns expressed by the Kerala High Court and allowed for re-vaccination of all individuals vaccinated with Sputnik desirous of travelling abroad.
Aditya Manubarwala is a Counsel practising at the Supreme Court and the Bombay High Court
