The Union government’s coronavirus vaccination policy that has put the onus of giving doses to adults in the below-45 years age group entirely on states and private hospitals is “prima facie arbitrary and irrational”, the Supreme Court said on Wednesday, ordering the Union government to submit within two weeks “all relevant documents and file notings” that reflect how the strategy came about.
Picking holes in the national vaccination policy, the top court held that the liberalised policy introduced on May 1 “conflicts with the constitutional balance of responsibilities between the Centre and states”.
“…due to the importance of vaccinating individuals in the 18-44 age group, the policy of the central government for conducting free vaccination themselves for groups under the first 2 phases, and replacing it with paid vaccination by the State/UT Governments and private hospitals for the persons between 18-44 years, is, prima facie, arbitrary and irrational,” said the order by the bench headed by justice Dhananjaya Y Chandrachud.
The issue has also sparked a row between some states and the Union government. States such as Delhi and West Bengal have said that they have been left to fend for themselves to secure doses for the under-45 age group, alluding to Centre’s stand that doses can directly be bought from vaccine makers also based outside of India. Several state governments opened bids for purchase orders, but the response has been muted with most key vaccine makers saying they deal only with national governments.
The bench, which also included justices L Nageswara Rao and S Ravindra Bhat, asked the Union government to explain how ₹35,000 crore, earmarked for procuring vaccines in the Union Budget for 2021-2022, have been spent so far and why they could not be utilised for vaccinating persons in the 18-45 age group.
It called on the Centre to submit an affidavit within two weeks with details of percentage of people vaccinated (single dose and double dose) as against all eligible people in rural and urban areas; an outline for how and when the Centre seeks to vaccinate the remaining population; complete data on purchase history, orders placed and projected dates of supplies, as well as the steps being taken to ensure drug availability for mucormycosis.
The court further requisitioned copies of all relevant documents and file noting from the government, “reflecting its thinking and culminating in the vaccination policy”.
States and UTs have also been directed to clarify through affidavits before the next date of hearing on June 30 if they have decided to vaccinate their population for free.
The court, which noted submissions may be the Union government on May 9, said that if the Union government’s “unique monopolistic buyer position” was the only reason for it to be receiving doses at a lower price, it was important for the so-called liberalised vaccination policy to be examined under Article 14 of the Constitution since “it could place severe burdens, particularly on States/UTs suffering from financial distress”.
Article 14 guarantees the fundamental right to equality in India.
The order came following a hearing on Monday in a suo motu (on its own) case initiated by the top court. The bench began its 32-page order by rejecting the Union government’s contention that any “overzealous judicial intervention” by the Supreme Court in the vaccination policy may lead to unintended circumstances.
“Our Constitution does not envisage courts to be silent spectators when constitutional rights of citizens are infringed by executive policies. Judicial review and soliciting constitutional justification for policies formulated by the executive is an essential function, which the courts are entrusted to perform,” said the bench.
The Union government effected significant changes to its Covid-19 vaccination protocol from May 1 in a set of decisions it called the liberalised vaccination policy. This change paved for people in the 18-45 age group to get doses, as long as these shots were acquired directly by the states or private hospitals from the manufacturers.
The government decided the doses will be split in a ratio of 50:25:25 between the Centre, states/UTs, and private hospitals. While the Centre is paying manufacturers ₹150 per dose for Covishield, states are buying it for ₹300 a dose. Similar disparity in prices apply to Covaxin as well
The order went into what it said were several issues with the government’s vaccination policy and directed the Centre “to undertake a fresh review of its vaccination policy” since vaccination of the nation’s entire eligible population, it emphasised, “is the singular most important task in effectively combating the Covid-19 pandemic in the long run”.
The number of issues regarding the procurement process, distribution and availability of vaccines must be clarified and the government must disclose a roadmap on how it planned to vaccinate all eligible persons by the year-end, the order said.
Solicitor general Tushar Mehta on Monday said all eligible people will be given doses by December 31.
Some of the issues the bench raised were those relating to equity of access. “Marginalised sections of the society would bear the brunt of the accessibility barrier” under the policy since it exclusively relied on a digital platform (Co-WIN) for registration and therefore, may cause “serious implications on the fundamental right to equality and the right to health of people”.
“…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,” it said.
The court also asked why inoculation was open for 18-45 group in the third phase on a payment basis even though the experience of the second Covid-19 wave showed people of this age group were also affected.
It also asked the Centre to clarify the rationale behind equal apportionment of vaccines between states and private hospitals by specifying whether there was any mechanism to oversee how the hospitals were administering the jabs, in addition to ensuring equitable distribution of vaccines across sections of the society.
The bench was further not convinced by the Centre’s justification that vaccine prices were allowed to be more for states and private hospitals in order to spur competition that would attract more private manufacturers and eventually lower prices.
“The liberalised vaccination policy may not be able to yield the desired results of spurring competitive prices and higher quantities of vaccines… Prima facie, the only room for negotiation with the two vaccine manufacturers was on price and quantity, both of which have been pre-fixed by the central government. This casts serious doubts on UoI’s justification for enabling higher prices as a competitive measure,” said the court.
It asked why the Centre did not procure 100% vaccines when large purchase orders for vaccines helped them get vaccines at lower prices.
Nudging the Centre to utilise its position as the monopolistic buyer in the market and pass down the benefit to all persons in the country, the court said that the “avoidable expense” due to the differential pricing will eventually hurt the welfare of individuals residing within those states and UTs.
About the pricing of the vaccine, the court questioned the Centre for intervening in pre-fixing procurement prices and quantities for states and private hospitals but choosing not to impose statutory price ceilings.
It asked the government to mention in its affidavit a comparison between the prices of vaccines being made available in India, to their prices internationally.