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Wednesday, May 25, 2022

Justice in the time of virus

🔴 Menaka Guruswamy writes: As in Novak Djokovic’s case, vaccines and masks will continue to present legal challenges, forcing courts to adjudicate between individual freedom and the larger good

Written by Menaka Guruswamy |
Updated: January 22, 2022 9:46:48 am
Covid-19 vaccination, covid, coronavirus vaccine, United States, Australia, Novak Djokovic, India, mask, United States Supreme Court, Joe Biden, Federal Court of Australia, Australian Open, Australia’s zero-Covid policy, indian expressWhat is certain is that vaccines and masks will continue to present legal challenges in courts — whether through tennis stars or governments or members of the public. (C R Sasikumar)

Judges are constantly confronted with new crises that demand responsible adjudication. This is what makes the practice of law — both at the bar and on the bench — exciting. In the past few weeks, two fascinating court cases involving Covid-19 vaccination regimes have captured the public imagination and warranted the attention of judges in the United States and Australia.

On January 13, 2022, the United States Supreme Court (SCOTUS) delivered a judgment in National Federation of Independent Business v Department of Labour, Occupational Safety and Health Administration pertaining to the Joe Biden administration’s vaccine or weekly-test mandate for all employers with 100 or more employees. In a 6-3 decision, the judges ruled that the Occupational Safety and Health Administration (OSHA) had exceeded its power in issuing such a mandate, minus an authorisation from Congress. The majority comprised the six conservative judges appointed by Republican administrations.

The majority’s rationale was that while Congress has given OSHA the power to regulate workplace dangers, it “has not given that agency the power to regulate public health more broadly.” The court reasoned that while Covid-19 “is a risk that occurs in many workplaces, it is not an occupational hazard in most.” Noting that Covid-19 can spread practically anywhere that people gather, the court declared that the universal risk the virus presents is no different from the day-to-day dangers that people confront from crime or air pollution.

Yet, in a companion case Biden v Missouri, SCOTUS allowed the government to temporarily enforce a vaccine mandate for healthcare workers at facilities that receive federal funding. This time, the court was split 5-4, with Chief Justice John Roberts and Donald Trump appointee Justice Brett Kavanaugh joining the three liberal judges Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor.

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I highlight the political persuasions of the ruling majorities and dissenting minorities in these cases because vaccines and masking are deeply politicised issues in the United States. Conservatives, including many Republicans, fiercely oppose both vaccine and mask mandates, viewing them as infringing upon freedom, while also questioning their utility. Justice Neil Gorsuch, a Trump appointee, has reportedly refused to wear a mask while hearing cases in physical court. Meanwhile, his senior colleague Justice Sonia Sotomayor has been hearing cases from home because she has diabetes, an underlying condition that puts her at a greater health risk should she contract Covid. In ordinary course, Justices Sotomayor and Gorsuch sat next to each other, and Justice Gorsuch’s refusal to wear a mask has resulted in a controversy about his bench etiquette.

Meanwhile, on January 20, 2022, in Djokovic v Minister of Immigration, the Federal Court of Australia supported the Australian government’s decision to deport the world’s no. 1 tennis player, Novak Djokovic from the country. Djokovic, a Serbian national, had entered Australia to defend his Australian Open championship and bid for a record-breaking tenth title. The drama that unfolded over the last two weeks saw Djokovic being detained twice, winning a challenge before one judge, practising on the tennis courts for a few days, and then being hauled back into detention after a higher court ruled against him.

Prior to his arrival in Australia, Djokovic chose not to get vaccinated, and consistently played down the threat of Covid-19. Shortly after he tested positive in early December 2021, he continued to attend public events in Serbia unmasked. The player came into conflict with Australia’s zero-Covid policy, which involves strong vaccine imperatives and allows entry to only those foreigners who are fully vaccinated.

The Federal Court of Australia approved the Minister of Immigration’s argument that Djokovic’s continued presence, as a celebrity athlete and role model known to oppose vaccinations, “would foster anti-vaccination sentiment.” The court observed that there was sufficient material before the minister to show that anti-vaccination groups had portrayed Djokovic as a hero and icon of freedom for his stance opposing vaccination. Under Australian law, the Minister of Immigration can cancel a visa if the visa holder presents a risk to the health or good order of the Australian community. In this instance, the minister and the court both agreed that Djokovic — an iconic tennis star — may encourage people who were uncertain as to whether they should vaccinate to follow his example in eschewing vaccinations. On January 16, the world’s top tennis player was deported from Australia. Djokovic’s tennis career may be imperilled due to his refusal to get vaccinated. Reports have emerged that the French Open will also not allow unvaccinated players to compete.

Fortunately, in India both vaccination and mask-wearing are bipartisan issues. All across the political class have welcomed the availability of vaccines and have supported the wearing of masks. If anything, the critique of India’s vaccination policy has revolved around the insufficiency in vaccine procurement by the government during the second wave last year, and not whether vaccines work or not.

In May 2021, the Supreme Court of India in Re: Distribution of Essential Supplies and Services during the Pandemic took suo motu cognisance of the insufficiency of vaccine availability and influenced the government in changing its policy. As a result, the central government now procures 75 per cent of all vaccines, and the remaining 25 per cent are available in the open market. The earlier policy required state governments to purchase vaccines from the open market to meet their requirements. Interestingly, the central government recently informed the Supreme Court in a case concerning the vaccination of those who are physically challenged in Evara Foundation v Union of India, that there are no vaccine mandates in the country, nor will vaccinations be conducted on a person who does not consent. The government’s affidavit made it clear that while they strongly support and publicise the need to get fully vaccinated and wear masks, there will be no coercion.

As the Omicron variant shows signs of receding, it is still unclear whether this is the waning of the pandemic or the start of a new reality of living with the virus. What is certain is that vaccines and masks will continue to present legal challenges in courts — whether through tennis stars or governments or members of the public. The courts and judges will certainly be adjudicating more on public health dilemmas, while engaging a fundamental question — where does freedom end and responsibility to the larger good begin?

Guruswamy is a Senior Advocate at the Supreme Court of India

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