Priyam Lizmary Cherian

In an order dated 31.05.2021, the Supreme Court in the In Re : Distribution of Essential Supplies and Services During Pandemic (Suo moto WP(C) 3/2021) has directed the Central government file an affidavit providing details on:

1. Percentage of population that has been vaccinated (with one dose and both doses) in the first three phases of the vaccination drive. Specifically, the Court directed that the data shall include percentage of rural population as well as the percentage of urban population so vaccinated;

2. Central Government’s purchase history of all the COVID-19 vaccines till date (Covaxin, Covishield and Sputnik V). This information to also include:

a. dates of all procurement orders placed by the Central Government for all 3 vaccines;

b. quantity so ordered on each date;

c. the projected date of supply;

3. Outline for how and when the Central Government seeks to vaccinate the remaining population identified in phases 1, 2 and 3.

4. Roadmap of projected availability of vaccines till 31 December 2021;

5. Preparedness with respect to specific needs of children in the event of a third wave;

6. Number of crematorium workers vaccinated;

7. The mechanism for redistribution of vaccines, if the 25:25 quota in a particular State/UT is not picked up by the State/UT Government or the private hospitals;

8. Policy under which states or individual bodies can access vaccine supplies from foreign manufacturers;

9. Clarify manner in which central government will monitor disbursal of vaccines to private hospitals

10. The steps being taken by the Central Government to ensure drug availability for mucormycosis.

Additionally, the central government has been directed to supply copies of all documents related to file noting that reflect the rationale of the vaccination policy.

The Court also noted that the central government in its affidavit had stated that the states are willing to vaccinate their populations for free. The states have therefore been directed by the Court to clarify their position on free vaccination.

The suo moto proceedings were initiated on April 22, 2021, taking cognisance of the second wave of COVID-19 that saw several pleading for adequate and timely resources.

The scope of the hearing on May 31 were limited to the vaccination policy, noting that, “vaccination of the nation’s entire eligible population is the singular most important task in effectively combating the COVID-19 pandemic in the long run”. This comment was made with the clarification that other issues that were identified in the previous order will be continued to be monitored.

The submissions before the court

The Solicitor General submitted that the vaccination drive would be completed by end of December 2021. He also added that everyone above the age of 45 years can be vaccinated on-site without a previous appointment on CoWIN. It was also submitted that it is incorrect to state that the updated vaccine policy will lead to competition amongst the states.

Union of India’s affidavit

The affidavit submitted by the Union of India noted that the vaccine policy was implemented as a response to requests by State/UT Governments, and after detailed deliberations with domain experts. The affidavit added that vaccination for persons above 45 years was free since they were more vulnerable. The liberalised vaccine policy was said to be in conformity with the mandate of Article 21 and 14 of the Constitution given the differential vulnerability and mortality rates across the various age groups.

At the same time, it was submitted in the affidavit that paid vaccination through private hospitals would reduce the operational stress on the government, however this policy could also undergo changes based on performance and future availability of vaccines.

It was submitted in the affidavit that the National Expert Group on Vaccine Administration for COVID-19 had procured over 6.6 crore doses for initial phase. It was added that import of 1.5 lakh doses of Sputnik V by Dr. Reddy’s Laboratories had been approved.

The amici appointed by the Court, Senior Advocate Ms. Meenakshi Arora, and Senior Advocate Mr. Jaideep Gupta pointed out several issues including those related to vaccination production, distribution and pricing. They noted:

i. Foreign vaccine manufacturers are not receptive to dialogue with states and as a policy deal with federal governments;

ii. The Universal Immunization Programme since 1978, has stood the test of time providing fee vaccines to states. Single procurement model worked effectively during phase 1 and 2 of COVID-19 vaccination.

iii. Liberalized vaccination policy has left the states to fend for themselves. This allows vaccine manufacturers to implement differential procurement pricing for the centre for vaccinating above 45 yrs population and states and private hospitals vaccinating 18–44 age group;

iv. States do not enjoy the unique position of the centre as a single buyer who can negotiate appropriate prices;

v. Liberalised policy imposes undue burden on persons of age 18–44 years, particularly those from the poor socio-economic background, having to purchase two doses;

vi. No clarity on the basis of pro rata allocation of doses to the states;

vii. Appropriate guidelines are needed for production of appropriate quality masks and their free distribution;

viii. Centre and state government may consider forming guidelines for augmenting creation of infrastructure for electric crematorium.

They also noted that while public health is a state matter under Entry 6 of List II (State List), Entry 81 of List I (Union List) dealt with inter-state migration, and inter-state quarantine and Entry 29 of List III (Concurrent List) dealt with prevention of the extension from one State to another of infectious or contagious diseases. It was submitted that management of pandemic has to be done in tandem with the central government and the states, and therefore putting burden of vaccinating 18–44 aged population on the states conflicted with the constitutional balance of responsibilities between states and the centre.

Observations on vaccine policy

In its affidavit, the central government had submitted that, the vaccine policy, “requires no interference from the courts as the executive has “room for free play in the joints” while dealing with a pandemic of this magnitude.” The Court specifically clarified that the Courts cannot be silent spectators when constitutional rights of the citizens are infringed by executive policies. It noted that separation of power is the basic structure of the Constitution, however, it does not result in “courts lacking jurisdiction in conducting judicial review of these policies”.

The Court observed that the Liberalised Policy required some persons to pay for the vaccines, and the availability of the same were subject to booking a slot on CoWIN. Court also pointed out that the Policy does not identify persons with co-morbidities and other diseases, persons with disabilities, and other vulnerable groups. It was noted that the second wave also affected the persons between 18–44 years severely, and that the situation calls for this age group to be also vaccinated. Hence, given the importance of vaccinating this age group, the government’s decision to provide free vaccination in first two phases and replacing it with paid vaccination in states and private hospitals was noted to be prima facie arbitrary and irrational.

The petition is now listed for June 30, 2021.