New vaccine policy conflicts with balance of constitutional mandate for Centre and States

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A detailed report has been submitted by the amici Jaideep Gupta and Ms Meenakshi Arora before the Supreme Court which poses some compelling questions before the Centre, including how it proposes to meet the target of vaccinating 100 crore people by December with the current vaccine production capacity, and how the new vaccine policy fails to give clarity on a number of issues. The order passed by the three-judge Bench of Justices DY Chandrachud, Ravindra Bhat and Nageswara Rao includes this point by point iteration of the amici on the Centre’s new vaccine policy for Phase III and the affidavit filed by it.

On April 30, the court had passed a detailed order on issues like vaccination policy, supply of essential drugs, supply of medical oxygen, medical infrastructure, augmentation of healthcare workforce and the issues faced by them, and issues of freedom of speech and expression during the Covid-19 pandemic. The court had also directed the Centre to reconsider its policies on these issues.

During the May 31 hearing, the court limited itself to hearing aand deliberating on the issue of the vaccine policy. During the hearing, Solicitor General Tushar Mehta on behalf of the Centre supplemented the affidavit, and submitted that the vaccination drive will be completed by December and that it would be incorrect to state that the policy of vaccination of 18-44 age group will create competition among states.

The amici Jaideep Gupta and Ms Meenakshi Arora raised certain issues with regard to vaccine distribution, augmentation of vaccine production and differential pricing of vaccines as well as future preparedness to deal with Covid. The next date of hearing is June 30.

Procurement

The amici submitted that foreign vaccine manufacturers are generally not receptive or open to a dialogue with State/UT Governments as a matter of corporate policy. Further, as per the Universal Immunisation Programme adopted by Indian government since 1978, essential vaccines are procured by Centre and distributed to State free of cost, and is a policy that has stood the test of time. The Liberalized Vaccination Policy adopted from May1 for the Phase III of vaccination leaves the State/UT Governments to fend for themselves, rather than the Central Government acting on behalf of the entire nation; thus, allowing manufacturers to adopt differential pricing. If the Centre were to be the single procurement agency for all vaccines at a fixed cost, then the cost of vaccination to the public exchequer would be substantially lower.

States/UTs that are financially distressed may not be able to afford to purchase the vaccines at the prices set by the vaccine manufacturers or to lift the quantity allocated to them;

Disbursement

The new policy puts an undue burden on persons between the age group of 18-44 years, specifically persons belonging to a weak socio-economic backgrounds. Although the State/UT Governments may have announced free vaccination for their population, some of them are contesting the Liberalized Vaccination Policy before this Court and have advanced submissions for universal vaccination by the Central Government.

The quota of 25% that is available to State/UT Governments, which is equivalent to the private hospitals, is extremely disproportionate and not in touch with societal realities, as a large number of persons may not be able to afford two doses of a vaccine from a private hospital. Thus, if State/UT Governments are to bear the burden of vaccinating a majority of the persons in their States/UTs, the quota available to the private hospitals must be reduced.

The policy also does not give any clarity on allotment of doses to States/UTs and the criterion for the same whether it will be on the basis of population; state of the pandemic in each State/UT; or the number of persons with co-morbidities between 18-44 years of age. The policy is also silent on who will make this allotment, the Centre or the manufacturer. The Centre has said it might redistribute the vaccines procured by it among State/UT Governments but on what basis this will take place has not been stated in the policy.

Constitutional responsibility

Although public health is a subject under Entry 6 of List II (State List) of the Seventh Schedule to the Constitution, Entry 81 of List I (Union List) deals with inter-State migration and inter-State quarantine and Entry 29 of List III (Concurrent List) deals with prevention of extension from one State to another of infectious or contagious diseases. Thus, the management of the pandemic, control of the spread of Covid-19, vaccination policy and pricing, are the responsibility of the Central Government, which must work in tandem with the State/UT Governments. The Liberalized Vaccination Policy thus conflicts with constitutional balance of responsibilities between the Centre and States/UTs

Vaccination target

The Centre has stated it will be able to fully vaccinate 100 crore persons by December, but no projections have been shared on how this target will be met. It appears that the Centre has factored a number of vaccines that are currently in their development stages to reach its projected number of 200 crore doses which is misguided as the success and efficacy of vaccines at trial stage cannot be guaranteed.

Vaccine production

Reports suggest that the current vaccine manufacturers, Serum Institute of India and Bharat Biotech will be able to produce less than 10 crore doses per month and optimistically around 15-20 crores doses of Sputnik V will be available per month, which means it would take around 12 months to just vaccinate the population in the 18-44 age group which amounts to 59 crore people requiring 118 doses.

These issues/concerns were raised by the amici which have been recorded in the detailed order of the Supreme Court. These pertinent issues were considered by the court during the hearing and the court has sought additional affidavit from the Centre on procurement and its policy for ensuring equitable distribution of the vaccine across sections of society.

The complete judgment may be read here: