Can't say you’re the Centre and you know what’s right: SC questions Centre’s vaccine strategy

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“In the context of a global pandemic, where the response and strategy of the nation is completely driven by expert medical and scientific opinion, there is even little room for judicial interference. Any overzealous, though well-meaning judicial intervention may lead to unforeseen and unintended consequences, in absence of any expert advice or administrative experience, leaving the doctors, scientists, experts and executive very little room to find innovative solutions on the go,” read Centre’s affidavit to the Supreme Court on its vaccine policy.

The Supreme Court Bench of Justices Chandrachud, Ravindra Bhat and L Nageswara Rao that sat today to continue hearing the suo motu matter on Covid-19, In Re Distribution of Essential Services and Supplies During Pandemic, posed some serious questions to the Centre on its vaccine policy.

LiveLaw quoted the Bench saying, “We are not framing policy. There’s an order of 30th April that these are the problems. You will be flexible. You can’t just say that you’re the Centre and you know what’s right. We have a strong arm to come down on this.” This was in response to Solicitor General Tushar Mehta’s remarks that these are policy issues on which the Court has limited judicial review power.

“We are not changing the policy. We are asking you to please wake up and smell the coffee and see what’s happening across the country”, remarked Justice Chandrachud. Justice Bhat also intervened and reportedly asked Tushar Mehta, “The only thing we want to address is the dual pricing policy. You are asking the States to pick up and compete with each other.”

The Centre had argued that differential prices for Centre and States is the new Liberalised Pricing and Accelerated National Covid-19 Vaccination Strategy that would further ramp up the pace of Covid-19 vaccination. It defended this policy by submitting that differential pricing is based on the concept of creating an incentivised demand for the private vaccine manufacturers in order to instil a competitive market resulting in higher production of vaccines and market driven affordable prices for the same.

“This will also attract offshore vaccine manufacturers to enter the country. This will result in increased availability of vaccine”, claimed the Centre. Justice Chandrachud, as reported by LiveLaw, further questioned the Centre about how States have been left to fend for themselves. He reportedly asked, “We have some concerns. Now we have a spectacle, where different municipal corporations, different states are issuing global tenders. We want to know, is this the policy of the Government of India that every Municipal corporation, every state is left to their own (devices) to get vaccines? Look at the capacity of BMC (Brihanmumbai Municipal Corporation), it might have a budget comparable with some of our States. Does the Government of India contemplate that for the procurement for foreign vaccines, there will be individual states or corporations submitting bids or are you going to be a nodal agency for the bids?”

Justice Ravindra Bhat, concerned about the same issue, raised questions about the rationale behind letting manufacturers decide the price of the vaccine. “Till date we have not seen the policy document which articulates this. We want to see the files. We want to know the rationale. To say that the centre will procure at a lesser price, and manufacturers are free to fix prices at their own whims…. we want to know the rationale. We want to know the rationale why the pricing of 50% vaccines is left to manufacturers.”

The Solicitor General attempted to provide answers to these questions and stated that the question of states or municipal corporations issuing tenders might be “academic” as companies such as Pfizer, Moderna etc., have a policy of dealing with only the Union government. However, Justice Chandrachud countered this by pointing out that the Mumbai Municipal Corporation has received bids for the Russian vaccine- Sputnik V.

Justice Chandrachud, during the hearing, also observed, “There is a vital issue. Article 1 of the Constitution says that India, that is Bharat is a Union of States. When the Constitution says that, then we follow the federal rule. Then the Government of India has to procure the vaccines and distribute them. Individual States cannot be left in a lurch”, reported LiveLaw.

The Bench also wondered about the difference between the age group above and below 45 with respect to vaccine pricing. The Centre is giving free vaccines only to the 45 above age group.

The Bench told the Centre, “Our issue is what is the basis for Centre to say that for 45 above, we will provide vaccines free of charge, and for rest, it will be procured at a charge. Two concerns are: You have constantly told us that the situation is dynamic. In the second wave, it was the pre-45 population which also suffered a great deal. Why should the Centre only procure for 45 age groups and leave the ones below on their own? What is the rationale? Can we say that 50% of the population between 18 to 45 will be able to afford the vaccines? Not at all!”

Mandatory CoWin registration

Another issue pointed out by the 3 judge Bench was about mandatory registration on CoWin application that ignores the fact that a considerable portion of India’s population does not have access to smartphones or the internet.

Bar & Bench quoted Justice Chandrachud saying, “What about the digital divide. For rural areas you have said villagers can register on the CoWin app through NGOs. Our law clerks and secretaries have tried to register on the CoWin app so we know how it works.”

Tushar Mehta argued that a poor villager who does not have a smartphone can go to a common centre and register himself for the vaccine. To this, Justice Chandrachud said, “A poor worker from Jharkhand has to go all the way to a common centre? You can certainly have registration, but how will you answer the digital divide? How do you answer the question about migrant labourers who have to go from one State to another?”

Justice Bhat added, “This is a real fear amongst the people. I have gotten distress calls from people across the country, that they’re not getting slots. They’re all gone within seconds.”

The court has given two weeks’ time to the Centre to file an affidavit on these issues.

The order may be read here: