The Supreme Court has asked the Centre to revisit its vaccine policy so that it withstands scrutiny of Articles 14 and Article 21 of the Constitution. The three-judge bench of Justices DY Chandrachud, L Nageswara Rao and S Ravindra Bhat prima facie held that the Centre’s vaccine policy violated right to health, and suggested centralising procurement and decentralising distribution.
At the outset, the court made it clear that it did not wish to delve into the role of the executive and was only trying to ensure probity and transparency.
In its previous order of April 27, the court had directed the Centre to clarify:
(i) the projected availability of vaccines and proposed steps to boost supply and distribution; and
(ii) the vaccine pricing and distribution among states.
The Centre, accordingly, filed the affidavit stating that as of April 26, as many as 13.5 crore vaccine doses were given to frontline workers and people of age 45 and above, covering about 9% of the population. The centre revised the strategy for vaccination of ages 18 and above allowing states and private hospitals to directly procure vaccines in order to accelerate immunisation.
Centre’s vaccine policy
The court however expressed its reservations prima facie on the validity of the revised policy under which the states and private hospitals are to procure 50% of the vaccines in order to immunise persons in the 18-44 years age group. The court observed that even in this age group there are people with vulnerabilities. The court opined that it would not be logical to impose the obligation to source vaccinations for the 18-44 age group on the State Governments as it will leave each State Government to negotiate supply schedules, delivery points and other logistical arrangements with the manufacturers.
The court held that the available stock of vaccine is not adequate to deal with the requirement and the central government has to take up the responsibility of providing guidance to every state on the quantities to be supplied to each state, the vaccine(s) being allocated, the period of delivery, and the number of persons who can be covered for vaccination, among other details.
The court sought more answers from the Centre on the following points:
(i) Whether the Central and State Governments have introduced any initiatives for ensuring the immunization of persons who do not have access to internet for registering on Cowin portal
(ii) Whether walk-ins will continue for 45+ age group after May 1
(iii) Whether the Central or State Governments propose to undertake targeted vaccination drives for persons who are providing on-ground assistance during the second wave of the pandemic – such as crematorium workers, who were not considered as Frontline workers
(iv) efforts being taken to ensure vaccine outreach in rural areas and remote areas through mobile vans, vehicles and railways to vaccinate such people near their doorsteps. Efforts must also be made that a lack of an identity proof does not create a hindrance in the process of immunization of all individuals, specifically, the underprivileged
(v) Whether the Central government will revisit its policy by procuring 100% of the doses which can then be equitably disbursed to the State Governments;
(vi) Since the vaccine administration is now to be a shared responsibility of the Union and the States, the Central Government and the State Governments shall provide- (a) a breakup of the current and projected availability of vaccine stocks for the next 6 months; and (b) a timeline for achieving immunization of the newly eligible 59 crore persons who are aged between 18-44 years.
The court held these to be issues of vital importance as vaccination is an important strategy to combat the pandemic.
Pricing of vaccine
On the pricing of the vaccine, the court held that compelling the State Governments to negotiate with manufacturers on the ground of promoting competition and making it attractive for new vaccine manufactures will result in a serious detriment to those in the age group of 18 to 44 years. The court observed that in this age group there are also people belonging to Scheduled Castes or marginalised communities, and they may not have the ability to pay for the vaccine and each state government will have to decide on its own finances, whether to offer them for free or with subsidy. As per the court, this would create disparity across the country.
“Discrimination cannot be made between different classes of citizens who are similarly circumstanced on the ground that while the Central government will carry the burden of providing free vaccines for the 45 years and above population, the State Governments will discharge the responsibility of the 18 to 44 age group on such commercial terms as they may negotiate,” observed the court.
The court held that the best way to navigate through this would be “in a manner consistent with the right to life (which includes the right to health) under Article 21 would be for the Central Government to procure all vaccines and to negotiate the price with vaccine manufacturers. Once quantities are allocated by it to each State Government, the latter would lift the allocated quantities and carry out the distribution.” Basically, the court suggested centralising procurement and decentralising distribution.
The court refrained from deeming the constitutional validity of the Centre’s vaccine policy but held that it would “prima facie result in a detriment to the right to public health which is an integral element of Article 21 of the Constitution.” Thus, the court has asked the Centre to revisit its vaccine policy so that it withstands scrutiny of Articles 14 and Article 21 of the Constitution.
Differential pricing for Centre and States
The Centre’s justification for such differential pricing was to create an incentivised demand for the private vaccine manufacturers in order to instill a competitive market resulting in increased production of vaccines and market driven affordable prices for the same. Basis this justification, the court sought some clarifications:
(i) Whether any other alternatives were considered by the Central Government for ramping up the immunisation drive in India, particularly in light of its initial strategy of a centralised free immunisation drive;
(ii) The methodology which the Central Government was envisaging to procure adequate vaccine doses for the population prior to the revised strategy
(iii) Whether any studies and figures were relied upon in order to arrive at the conclusion that decentralised procurement would spur competitive markets to incentivise production and eventually drive down the prices. Whether these studies are of relevance in a pandemic when vaccines are a scarce and essential commodity which is being produced by a limited number of manufacturers for a limited number of vaccines.
The court has also sought to know in a bid to maintain transparency, whether the Centre has made any grants to Bharat Biotech or the Serum Institute of India in the past. This query was made after the Centre informed the court that Rs. 3,000 crores of credit has been sanctioned for SII and Rs. 1,500 crores to Bharat Biotech in addition to Rs. 65 crores to Bharat Biotech’s production Center at Bangalore.
The court has questioned the Centre on whether the current procurement prices for the Central Government account for infusion of funds for production, infrastructure and other aid provided by it, and why the same benefit is being denied to states which will equally service the needs of the citizens.
The court has also sought to know the extent of direct and indirect grant/aid provided for research, development and manufacture of all existing vaccines and future vaccines that the Centre proposes to authorise.
In a detailed order, on April 30, the Supreme Court dealt with other issues such as the Disaster Management Act, medical infrastructure, oxygen allocation, essential drugs and augmenting health workers.
The Court has directed the Centre to rectify the deficit of oxygen supply to Delhi within 2 days (before midnight of May 3); to prepare a buffer stock of oxygen, to formulate a national policy on admissions to hospitals and so on.
The next date of hearing is May 10.
The complete order may be read here: