"COVID Vaccination Policy Conforms To Constitutional Mandate, Executive Needs Discretion, Requires No Interference By Court,: Centre Tells Supreme Court

The Central Government has submitted before the Supreme Court that its vaccination policy conforms to mandate of Article 14 and Article 21 of the Constitution of India, and therefore requires no interference by the Supreme Court. 

Further Centre has stated that in the times of such grave and unprecedented crisis, the executive functioning of the government needs discretion to formulate policy in larger interest. Therefore, the vaccination drive is devised as an executive policy, and the wisdom of the executive should be trusted.

The submissions have been made through an affidavit  filed by the Centre in compliance with the order of the Supreme court dated April 30, 2021 in Suo Moto case regarding distribution of essential supplies and services during the pandemic.

The Supreme Court had prima facie observed that the vaccination policy was not conforming with the mandate of Articles 14 and 21 of the Constitution, for being arbitrary and violative of right to health.

With regards to Vaccine and Immunisation, Centre has stated that  its executive policy decisions have been taken in the most scientific manner, in consultation with experts in the field, keeping in mind the health and well-being of the citizens as the main and only focal point in the context of the unprecedented human crisis. 

Centre has further said that its formulated policy is compliant of constitutional principles, and  classification made have a reasonable nexus and an intelligible differentia. The affidavit has stated that the policy is made after careful consideration of all relevant factors by the authority competent to make the policy. 

Due to consultations and "persuasions" by the Central Government both the manufactures of vaccine have declared their prices which are uniform for all State Governments, Centre tells Supreme Court.

The price factor of vaccines will not have any impact on the ultimate beneficiary, as all State Governments have declared their policy of free vaccination, Centre tells Supreme Court.

Centre also says allowing vaccines to be sold through private sector will reduce the operational stress on government facilities as those who can afford to pay will go to private hospitals.

Centre says that the vaccination policy was based on expert advise and deliberations at the highest executive level and no interference is called for in a judicial proceeding

Centre has argued that even though some other policy is suggested and Court finds it to be better, the same may not be a ground for Supreme Court to  exercise its power of judicial review to substitute the policy more particularly when in such unprecedented times, the Executive, must have some free play in the joints based upon on ground experience and in larger public interest.

The Central Government has also stated that it is already utilising the health care workforce available with the armed forces and para military forces during the pandemic. Further, the plan for utilisation of the same for the purpose of vaccination are under active consideration and is being considered on need basis.

Centre has informed the Court that the matter of sending the proposal for invocation of the provisions of Section 100 of the Patents Act, 1970, is being processed. It's stated that MoHFW, with support of the DoP and the MEA, is making all efforts to enhance availability of Remdesivir through ramping up of production and sourcing through imports.

Centre has urged the Court that any discussion or a mention of exercise of statutory powers either for essential drugs or vaccines having patent issues would have serious and unintended adverse consequences in the countries efforts being made on global platform using all its resources, good-will and good-offices through  diplomatic and other channels.

With reference to Supply of Remdesivir, the Centre has said that considering all the circumstances and constraints which are inevitable, it has provided for a rational, reasonable, non-arbitrary, transparent and equitable system of distribution. 

Further, this methodology also factors in several day-to-day exigencies which would not be possible to be anticipated in exercise of judicial review by this Supreme Court, and the Court may interfere not with this suo moto jurisdiction. 

Centre has said that all citizens of all age groups will get free vaccination throughout the country, as all State Governments have announced free vaccination for group of 18- 44 years.

Centre has submitted that the price factor 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 they'll administering 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 dose of the vaccine." the affidavit reads.

The Central Government has stated that it has ensured that the prices of vaccine is uniform for all the States, by conducting informal consultations with the vaccine manufacturers, to avoid any disparity resulting from one State ending up buying vaccine at a higher price than the other.

Click here to read/download the Centre's affidavit