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Observing that the vaccine policy for the age group 18 to 44 years has been substantially changed by the Government of India, requiring some of them to pay for them, an additional requirement of mandatory digital registration and booking an appointment through CoWin, the Supreme Court has called it “prima facie, arbitrary and irrational.”
The Bench recorded that this ‘Liberalized Vaccination Policy’ submitted by the Centre through its affidavit dated May 9 does not prioritise persons with comorbidities, persons with disabilities, or any other vulnerable groups. Given the experience of the second wave of the pandemic, the court noted that Covid-19 is capable of mutation and now poses a threat to persons in the younger age group too. “Reports indicate that persons between 18-44 years of age have not only been infected by Covid-19, but have also suffered from severe effects of the infection, including prolonged hospitalization and, in unfortunate cases, death,” the Bench reportedly said.
On the issue of vaccine procurement, the three-judge Bench of Justices Chandrachud, Ravindra Bhat and Nageswara Rao said that there are a number of issues that need to be addressed. It noted that “many State/UT Governments and local municipal bodies have issued tenders and attempted to negotiate with foreign manufacturers but they have largely been unsuccessful, as foreign manufacturers are not inclined to negotiate with individual State/UT Governments and prefer negotiating with federal governments of countries.”
It recorded the submission made by Amici Jaideep Gupta and Meenakshi Arora that the Centre is better placed to use its monopoly as a buyer (India being the second most populous country) to bargain for higher quantities of vaccines at reasonable prices. In response to this, the court held, “We find that the submissions urged by the Amici are extremely pertinent and have indicated that in practice, the Liberalized Vaccination Policy may not be able to yield the desired results of spurring competitive prices and higher quantities of vaccines.”
With respect to vaccine availability, the top court noted the submissions of the Union in its affidavit, that it is difficult to predict the projections for vaccines given that it depends on variable factors such as introduction of new foreign vaccines, capability of increased production by existing manufacturers, etc.
Tushar Mehta, appearing for the Union government, had during the course of his oral submissions stated that the government aims to vaccinate approximately “100 crore persons by the end of December 2021.” For lack of clarity on this subject, the court asked the Centre to “undertake a fresh review of its vaccination policy addressing the concerns raised” and provide the following clarifications:
1. As noted above, the UoI (Union of India) is directed to place on record a roadmap of projected availability of vaccines till 31 December 2021;
2. The preparedness with respect to specific needs of children in the event of a third wave of the pandemic in terms of medical infrastructure, vaccination trials and regulatory approval, and compatible drugs;
3. Whether under the policy of the UoI, it is permissible for State/UT Governments or individual local bodies to access vaccine supplies of foreign manufacturers;
4. The number of crematorium workers vaccinated in phase 1. A targeted drive can be conducted for vaccination of the remaining crematorium workers;
5. The State/UT Governments are diverting the vaccines (procured by them at a higher price than Central Government) for the persons in the age group of 18- 44 years to vaccinate persons above 45 years of age, due to a shortage of vaccines being supplied by the Central Government. The manner in which the Central Government will factor this quantity and price differential into their subsequent allocation and disbursal of vaccines to States/UTs for the persons above 45 years of age;
6. The mechanism for redistribution, if the 25:25 quota in a particular State/UT is not picked up by the State/UT Government or the private hospitals.
As a consequence of this Liberalized Vaccination Policy of the Centre, 50 percent of the population of any State/UT in the 18-44 age group is expected to pay for its vaccination. After perusing the affidavit, the court said, “We understand that this has been done while taking into account the ability of a certain section of the population to pay for their vaccination. However, the present system of allowing only digital registration and booking of appointment on CoWin, coupled with the current scarcity of vaccines, will ultimately ensure that initially all vaccines, whether free or paid, are first availed by the economically privileged sections of the society.”
The court also pointed out a scenario where people who can afford the vaccines, may opt for a free vaccine simply because of issues of availability, even if it would entail travelling to far-flung rural areas. Hence, the court opined that “any calculations of the economic ability of a given individual may not directly correspond to the vaccination route (paid/unpaid) they opt for.” Consequently, it is also plausible, the court thought, that private hospitals may have vaccine doses left over with them because everyone who could afford them has either already bought it or availed of a free vaccine, while those who need it may not have the ability to pay for it.
To address these issues, the top court has asked the Centre to clarify:
1. The manner in which Central Government will monitor the disbursal of vaccines to private hospitals, specifically those who have hospital chains pan India. Further, whether (i) private hospitals are liable to disburse vaccines pro rata the population of States/UTs; and (ii) the mechanism to determine if private players are genuinely administering the lifted quota in that State/UT alone. The UoI shall place on record any written policy in relation to this.
2. Whether the Central Government conducted a “means-test” of the demographic of a State/UT to assert that 50% of the population in the 18-44 age group would be able to afford the vaccine. If not, the rationale for private hospitals being provided an equal quota for procurement as the State/UT Governments.
3. The manner in which the Centre and States/UTs shall ensure an equitable distribution of vaccines across sections of the society, and how these factors into the rationale of equal apportionment between State/UT Governments and private hospitals.
4. The nature of the intervention with respect to the final, end-user price that is being charged by private hospitals, especially when a cap on procurement by the private hospitals has been set.
The Central Government has been directed to file an affidavit in this regard within 2 weeks.
The judgment may be read here:
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