Directing the Centre to “undertake a fresh review of its vaccination policy addressing the concerns raised”, the bench of Justices D Y Chandrachud, L Nageswara Rao and S Ravindra Bhat sought detailed information in the form of an affidavit in two weeks.
Underlining that “our Constitution does not envisage courts to be silent spectators when constitutional rights of citizens are infringed by Executive policies”, the Supreme Court said Tuesday that the Centre’s policy of arranging free Covid-19 vaccine jabs for the 45-plus age category, Health Care Workers (HCW) and Front Line Workers (FLW) while asking the 18-44 age group to pay for the vaccination by state and Union territory governments and private hospitals was “prima facie arbitrary and irrational”.
Directing the Centre to “undertake a fresh review of its vaccination policy addressing the concerns raised”, the bench of Justices D Y Chandrachud, L Nageswara Rao and S Ravindra Bhat — the order in the suo motu matter of Covid-19 management heard May 31 was uploaded Tuesday — sought detailed information in the form of an affidavit in two weeks.
This is what the bench told the Centre and asked it to clarify:
* The concerns of the amici (friends of the court) regarding the vaccine procurement process, the unwillingness of foreign vaccine manufacturers to negotiate with states and UTs and their preference to deal with the federal government, and whether the government can use its monopoly as a buyer to bargain for higher quantities of vaccines at reasonable prices.
* Whether it will intervene in the vaccination distribution process, whether the pro rata allotment will take into account the question of inter-state migration, healthcare infrastructure and existing capacities of a state/UT, the literacy rate, age and overall health condition of its population, so that state/UT governments have a realistic assessment of the assistance they can expect from the Union of India.
* Provide data on the percentage of rural and urban population vaccinated with one or both doses, as against eligible persons in the first three phases of the vaccination drive; and data regarding the purchase history of Covaxin, Covishield and Sputnik V vaccines till date.
* While states need to file affidavits on whether they are vaccinating their population free of cost, the Centre must place on record a roadmap of the projected availability of vaccines until December 31, 2021; preparedness regarding specific needs of children in the event of a third wave; and the number of crematorium workers vaccinated in Phase 1.
* Whether, under the policy of the Union of India, it is permissible for state/UT governments or individual local bodies to access vaccine supplies of foreign manufacturers.
* How will it factor in States and UTs diverting supplies meant for the 18-44 age group to the 45 plus owing to shortage; and the mechanism for redistribution if the 25:25 quota in a particular State/UT is not picked by the State/UT government or private hospitals.
* Whether certain vaccination centres may be earmarked for on-site registration for the population aged 18-44 years without stipulating the existing conditions; and to address accessibility barriers in the CoWIN portal.
The bench said: “Unlike the prior policy, the Liberalized Vaccination Policy does not prioritize persons with co-morbidities and other diseases, persons with disabilities, or any other vulnerable groups. This is especially an issue because the experience of the second wave of the pandemic has provided an experiential learning that the Covid-19 virus is capable of mutation and now poses a threat to persons in this age group as well.”
“Due to the changing nature of the pandemic, we are now faced with a situation where the 18-44 age group also needs to be vaccinated, although priority may be retained between different age groups on a scientific basis. 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,” it said.
In its affidavit earlier, the Centre had urged the court to trust the wisdom of the executive and leave policy decisions to it.
On this, the bench said while separation of powers is a basic feature of the Constitution and policy-making is the sole domain of the executive, it “does not result in courts lacking jurisdiction in conducting a judicial review of these policies”.
It asked the government to provide all documents and file notings “reflecting its thinking and culminating in the vaccination policy” in an affidavit in two weeks.
“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,” the bench said, adding it “continues to exercise jurisdiction to determine if the chosen policy measure conforms to the standards of reasonableness, militates against manifest arbitrariness and protects the right to life of all persons”.
The bench noted that while the vaccine policy makes it paid for 50 per cent in the 18-44 age group through private hospitals, taking into account the fact that there are those who can afford to pay, it said “however, 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” and that “even those who may have been able to afford a vaccine, may opt for a free vaccine simply because of issues of availability, even if it would entail travelling to far-flung rural areas”.
“Hence, any calculations of the economic ability of a given individual may not directly correspond to the vaccination route (paid/unpaid) they opt for. Consequently, it is plausible that private hospitals may have vaccine doses left over with them because everyone who could afford them has either already bought it or availed of a free vaccine, while those who need it may not have the ability to pay for it,” it said.
The bench also expressed doubts on the argument that the purpose of enabling States and private hospitals to procure 50% of the monthly Central Drugs Laboratory-approved doses at a pre-fixed price is to spur competition and attract more private manufacturers to eventually drive down prices.
“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. Furthermore, the Central Government justifying its lower prices, on account of its ability to place large purchase orders for vaccines, raises the issue as to why this rationale is not being employed for acquiring 100% of the monthly CDL (Central Drug Laboratory) doses. The Union Budget for Financial Year 2021-2022 had earmarked Rs 35000 crore for procuring vaccines,” it said and asked the government “to clarify how these funds have been spent so far and why they cannot be utilized for vaccinating persons aged 18-44 years”.
Flagging more issues regarding vaccination by private hospitals, the bench asked the government to clarify whether it “conducted a “means-test” of the demographic of a State/UT to assert that 50% of the population in the 18-44 age group would be able to afford the vaccine” and, “if not”, explain “the rationale for private hospitals being provided an equal quota for procurement as the State/UT Governments”.
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