Supreme Court Disposes PIL Seeking Free Vaccination; Grants Liberty To Petitioner To Assist In Suo Motu Case

On June 7, Prime Minister Narendra Modi, announcing a significant change in the vaccination policy, said that the Union Government has decided to procure vaccines for state governments as well. More importantly, the Prime Minister said that the benefit of Centre's free vaccination scheme will be extended to the age group of 18-44 years.

Notably, this revision of the vaccine policy came few days after the Supreme Court's harsh criticism against it while considering the suo moto case on COVID issues (In Re Distribution of Essential Supplies and Services During Pandemic).

Out of the several concerns expressed by a bench comprising Justices DY Chandrachud, L Nageswara Rao and S Ravindra Bhat with the 'Liberalized Vaccination Policy', the two prominent ones were :

(1) The dual pricing and procurement policy which forces states to directly procure vaccines from private manufacturers at a price fixed by them. Why states should pay more, the Court asked, emphasizing the need for uniform price.The Court observed that this was prima facie discriminatory as states have the same constitutional obligation as the Union to protect the health of the people.

(2) The exclusion of the age group 18-44 years from the Centre's free vaccination scheme - the Court observed that this was prima facie arbitrary and irrational, particularly considering the fact this age group was the worst hit during the second wave of the pandemic.

In this connection, it is relevant to note that till a week before this hearing, there was no indication of any revision in the vaccine policy, even though a lot of state governments were relentlessly calling for the same. Even as late as on May 31, the Centre maintained before the Supreme Court that 'all is well' with the vaccination policy, with the Solicitor General of India attempting to create a positive impression by mentioning the possibility of success in talks with foreign vaccine manufacturers.

It is also relevant to note that the Supreme Court in its May 31 order went few steps ahead of its previous order by asking the Centre to :

(1) Furnish complete data on vaccine purchase history.

(2) Produce before the Court all relevant documents and file notings which led to the policy.

(3) Explain how the budgetary allocation of Rs 35,000 crores was utilized for vaccine procurement and clarify why this amount cannot be utilized for giving free vaccines for the category of 18-44 years.

In the May 31 order, the Court expressed its dissatisfaction with the justifications provided by the Centre. For example, the Centre had said that the vaccine policy will not impact the underprivileged as all states have announced free vaccination policies. The Centre had also said that the pricing was competitively fixed so as to incentivize private players. Raising eyebrows at this justification, the Court asked how is this tenable when there are only two fixed manufacturers.

"The justification for this Policy has been adduced in a bid to spur competition which would attract more private manufacturers that could 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 doses", the Court observed in its order.

The Court also repeated its questions on the factors leading to fixation of the vaccine prices. Whether the public aid to the manufacturers were accounted in the pricing, the Court asked. The Court also sought a comparison of the prices of the same vaccines sold in India and abroad. During the oral hearing, the bench was commented that the vaccines were sold at a much cheaper rate in USA and Europe.

Also, the Court had expressed concerns about the quota allocated to the private hospitals, which are selling vaccines at an exorbitant price. In this connection, it is relevant to note that the Prime Minister said today that the service charges of private hospitals for vaccines will be capped at Rs 150.

"Further consequences of the vaccination by private hospitals under the Liberalized Vaccination Policy relate to a simple issue at the core of their existence: at while they provide a public health service, they still remain private, for-profit entities. Consequently, they may sell the vaccine doses procured at a higher price, unless regulated stringently. Private hospitals also may not sell all their vaccine doses publicly through appointments on CoWIN, but rather sell them for lucrative deals directly to private corporations who wish to vaccinate their employees. Finally, private hospitals are not equally spread out across a State/UT and are often limited to bigger cities with large populations. As such, a larger quantity will be available in such cities, as opposed to the rural areas",  SC noted in its May 31 order.

So the intention of the Court was clear - that it was not ready to accept the Centre's arguments and that it was not hesitating to push the envelope on judicial scrutiny.

In fact, the Court summoning the files on vaccine policy and the Centre having to explain its utilization of budgetary allocation would have become a huge embarrassment for the government.