New Delhi: Noting that the Centre’s vaccine policy, giving free vaccination to those above 45 and having a paid system for those below that age, is “prima facie arbitrary and irrational”, the Supreme Court has ordered the central government to undertake a “fresh review” of its entire policy.
A bench comprising Justices D.Y. Chandrachud, L. Nageswara Rao and S. Ravindra Bhat observed, “Hence, 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.”
The court was hearing a suo motu case, initiated on 22 April, on Covid-19 management in the country during the second wave. The order was issued on 31 May, after the government told the court that it will vaccinate the eligible population by December this year, but made public on Wednesday.
In the order, the court noted that the union budget for Financial Year 2021-2022 had earmarked Rs 35,000 crore for procuring vaccines. In light of the new vaccination policy, the Centre was directed to clarify “how these funds have been spent so far and why they cannot be utilised for vaccinating persons aged 18-44 years”.
It said that the liberalised vaccination policy “may not be able to yield the desired results of spurring competitive prices and higher quantities of vaccines”.
It further observed that it would have to examine the new vaccination policy against Article 14 of the Constitution, noting, “If the Central Government’s unique monopolistic buyer position is the only reason for it receiving vaccines at a much lower rate from manufacturers, it is important for us to examine the rationality of the existing Liberalized Vaccination Policy against Article 14 of the Constitution, since it could place severe burdens, particularly on States/UTs suffering from financial distress.”
The court has directed the Centre to issue several clarifications, including the roadmap of projected availability of vaccines till 31 December 2021, the preparedness on specific needs of children in case there is a third wave, the permissibility for State/Union Territory government or individual local bodies to access vaccine supplies of foreign manufacturers, and the number of crematorium workers vaccinated in phase 1.
It has also sought data on the percentage of population that has been vaccinated, as against eligible people in the first three phases of the vaccination drive, complete data on the Centre’s vaccination purchase history till date, and steps taken by the central government to ensure drug availability for mucormycosis.
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On vaccine pricing and availability
The court noted that the central government has financed and facilitated the production of vaccines, and, according to the order provided Rs 35 crore to Bharat Biotech India Limited and Rs 11 crore to Serum Institute of India for phase 3 clinical trials. In light of this, it asserted that “it may not be accurate to state that the private entities have alone borne the risk and cost of manufacture”, and that the grant of emergency use authorisations should also factor into vaccine pricing.
The court has demanded to understand the manner in which the pricing of vaccines has been arrived at and the justification for not imposing statutory price ceilings, “given that the R&D cost and IP have either been shared between the Central Government and the private manufacturer (in case of Covaxin) or the manufacturer has not invested in R&D of the vaccine (in case of Covishield)”.
The bench wants a comparison between the prices of vaccines being made available in India to their prices internationally, as well as information of whether Bharat Biotech or Serum Institute has formally invited contracts for voluntary licensing.
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‘Digital divide’
The court’s order reiterated the existence of a “digital divide” in the country, particularly between the rural and urban areas, and asserted that “a vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between the ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide”.
“It is the marginalized sections of the society who would bear the brunt of this accessibility barrier,” it added, observing that this could have serious implications on the fundamental right to equality and the right to health of people in this age group.
It, therefore, directed the Centre to provide clarity on several aspects of the vaccination process online, and also sought to know a timeline to make CoWIN and other apps like Aarogya Setu in multiple regional languages.
The court further demanded to know the Centre’s stand on conducting a disability audit for the CoWIN portal and other apps to ensure that they are accessible to persons with disabilities. This observation was made as the court noted that CoWIN is not accessible to persons with visual disabilities.
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Court examines impact of vaccination by private hospitals
The court also noted that as a consequence of the new vaccination policy, 50 per cent of the population of any State/UT in the 18-44 age group is expected to pay for its vaccination. It asserted that this, coupled with the fact that only digital registrations are allowed, “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 the effect of allowing vaccination by private hospitals, and asked the central government to clarify how it will monitor the disbursal of vaccines to private hospitals, specifically those who have hospital chains pan India.
The court has further asked the Centre to clarify “the nature of intervention with respect to the final, end-user price that is being charged by private hospitals”.