New Delhi: The vaccination strategy for COVID-19 has been formulated by the Centre in a “just, equitable, non-discriminatory” manner and any “overzealous” judicial intervention may result in unforeseen consequences, the government has told the Supreme Court.
In an affidavit filed by the Centre in response to the points raised by the top court, it said as vaccination of the entire country is not possible in one stretch due to the very suddenness of the pandemic, limited availability of vaccine doses and the vulnerability are the prime considerations.
The submission was made in a suo motu by the apex court case for ensuring essential supplies and services during the COVID-19 pandemic.
The top court has taken up issues such as the projected demand for oxygen in the country at present and in the near future, how the government intends to allocate it to “critically affected” states and its monitoring mechanism to ensure supply.
The central government submitted that the vaccination policy conforms to the mandate of Article 14 and Article 21 of the Constitution and was made after several rounds of consultations and discussions with experts.
State governments and vaccine manufacturers require no interference by the top court as dealing with a pandemic of this magnitude, the Executive does have room for free play in the joints, in the larger public interest, it said.
“Any overzealous, though well-meaning judicial intervention may lead to unforeseen and unintended consequences in absence of any expert advice or administrative experience, leaving doctors, scientists, experts and executive very little room to find innovative solutions on the go,” the Centre told the apex court in its 200-page affidavit.
It submitted that in the times of such grave and unprecedented crisis which the nation is fighting the disaster of an unprecedented magnitude, the executive functioning of the government needs the discretion to formulate policy in the larger interest.
“It is submitted that in view of the unprecedented and peculiar circumstances under which vaccination drive is devised as an executive policy, the wisdom of the executive should be trusted,” it said.
The government told the apex court that the price factor of vaccines will not have any impact on the ultimate beneficiary namely, the eligible person getting the vaccine since all state governments have already declared their policy decision that each State will be administering the vaccine to its residents, free of cost.
“Thus, while it is ensured that the two vaccine manufacturers are not unduly enriched from out of public money, the citizens are not supposed to make any payment for getting both doses of the vaccine,” the Centre said.
The Centre said that the apex court in a plethora of judgements has laid down the parameters for judicial review of executive policies, which can only be struck down or interfered with on the grounds of manifest arbitrariness, allowing sufficient play in the joints to the executive, to function in accordance with its Constitutional mandate.
On the issue of invoking compulsory licensing of provisions under the Patents Act to ensure availability of vaccines and drugs, the government told the apex court that the main constraint is in availability of raw materials and essential inputs and therefore, any additional permissions and licenses may not result in increased production immediately.
The affidavit stated that the Ministry of Health is making all efforts to enhance the availability of antiviral drug Remdesivir through ramping up of production and sourcing through imports.
“However, in view of the current constraints on the availability of raw materials and other essential inputs, the mere addition of more production capacity may not lead to the desired outcomes of enhanced supplies,” it said.
The Centre submitted that when there is a surge in cases and in demand of patented medicines/ drugs/ vaccines from all over the world the solution needs to be found out essentially at an executive level engaging at diplomatic levels.
“Any exercise of statutory powers either under the patents act 1970 read with Trips agreement and Doha declaration or in any other way can only prove to be counter-productive at this stage, the central government is very actively engaging itself with global organisations at a diplomatic level to find out a solution in the best possible interest of India,” it said.
The Centra also informed the Supreme Court that all states must ensure special teams at different levels to mercilessly clamp down on hoarding and black marketing of drugs during the COVID-19 pandemic and send a clear message that trading in human miseries shall not be tolerated.
Adding the Drugs Controller General of India (DCGI) had communicated to all state drugs controllers (SDCs) that there should be zero tolerance to any kind of hoarding or black marketing of drugs and also to instruct their enforcement staff to keep strict vigil and take stringent action.
It said the Ministry of Health and Family Welfare has requested the state governments to take all necessary measures to stop black marketing or hoarding of drugs under the provisions of the Drugs and Cosmetics Act, The Essential Commodities Act and other applicable rules and regulations.
The question of black-marketing is essentially dealt with sternly by the use of police administration and local state administration. Law and order being a state subject all state governments must ensure special teams at state, district and taluka levels to mercilessly clamp down on any illegal hoarding or black marketing and send a clear message that trading in human miseries shall not be tolerated under any circumstances, the Centre has said in its affidavit.
It said that enforcement actions have been taken in 157 cases across the country, which include lodging of FIRs and arresting those involved in such activities.
A bench headed by Justice D Y Chandrachud, which is hearing a suo motu case for ensuring distribution of essential supplies and services during the pandemic, had on April 30 flagged the issue of black marketing of drugs.
In its affidavit filed in the top court, the Centre has said that the sale and distribution of drugs are regulated under the Drugs and Cosmetics Act, 1940 and the Drugs Rules, 1945 by the state licensing authorities (SLAs) appointed by the state governments.
DCGI has taken a number of measures to check any hoarding and black marketing of drugs. DCGI had instructed all state drugs controllers (SDCs) on April 10, 2021, to conduct a special investigation drive to prevent hoarding/black marketing on Remdesivir in the country and action taken is being followed up by the CDSCO (Central Drugs Standards Control Organisation) regularly, it said.
On April 24, 21, DCGI had communicated to all the SDCs that there should be zero tolerance to any kind of hoarding/black marketing of drugs and again asked to instruct their enforcement staff to keep a strict vigil at the sensitive places and to take stringent action against black marketing/ hoarding of drugs, it said.
It said CDSCO has also collected information from the SDCs regarding details of the enforcement actions taken in this regard.
The enforcement actions have been taken in 157 cases in various places across the country, which include actions like filing cases/ lodging FIRs, arresting people involved in such activities, etc, the affidavit said.
The apex court, in its April 30 order, had said that black marketing of critical COVID-19 drugs and oxygen was a condemnable attempt to exploit peoples’ misery.
It had directed the Centre to consider constituting a special team to identify and prosecute such offenders.
The apex court had also noted that several critical drugs such as Remdesivir and Tocilizumab, were being sold at significantly inflated prices or in fake form.
“This is a condemnable attempt to exploit peoples’ misery and profit from their helplessness,” the apex court had said.
“In order to clamp down on this practice, the Central Government can consider constituting a special team to identify and prosecute those who: (a) sell medical grade oxygen/COVID-19 medicines at exorbitant prices; and (b) sell fake substances and recover the concerning substances,” it had said.
The Centre had earlier told the top court that hoarding or black marketing is a serious menace and heinous offence apart from being an unpardonable act of trading in human miseries.
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