'Invite Global Tenders For COVID Vaccines' : PIL In Madhya Pradesh High Court

The Petition has been moved by one Sunil Gupta through Advocate Siddharth R. Gupta prays that steps be initiated towards invitation of a global tender from various successfully tested vaccine production companies, for the supply of the requisite quantity of the vaccine.

It also submits that the States of Karnataka, Maharashtra, Andhra Pradesh, Telangana, Delhi have taken the in-principle decision of floating Global e-tenders for purchase of vaccines towards ramping up the process of immunization drive at the State level.

Averments in the plea

Stressing that since 'Health' is State subject vide List-2, Entry 6, under Seventh Schedule of the Constitution of India, the plea states,

"The States can take appropriate policy measures with respect to supply of drugs and 13 14 there is no constitutional inhibition in doing the same. Rather it is the obligation of the State to ensure that the fundamental rights of its citizens are preserved, protected and kept intact especially under Article 21 of the Constitution of India."

The plea further states that the vaccination for the 18+ age category was supposed to be implemented from the first week of May, 2021, however, due to various problems, and impediments, the process of inoculation wasn't swift and expeditious.

It highlights various problems such as, non-availability of slot, Shortage in supply of vaccines, No mechanism in existence by which CoWin can notify users when a slot is available in their area, Lack of vaccination staff, with resources getting diverted for patient care duties given rising admissions at hospitals etc.

Further, the plea avers that 50% of the procurement of vaccines is now left to be arranged by the State making them compete against each other in the international market arena.

Importantly, the plea states,

"Where on one hand, the State Government is not able to ensure speedier and widespread vaccination due to availability of doses, on the other hand, private entities across the country are able to squeeze a lion's share in the pie by getting the doses and vaccinating the people at much higher rates than that on which the Central Government is procuring, i.e., at the rate of Rs. 150 per dose per person."

However, the plea adds that if the State purchases a bulk lot of vaccines by placing a direct purchase order without any interference by the Central Government through a direct tender process, as has been done with many other categories of drugs in the normal course, then the problem shall be resolved.

Availability of other options

The plea submits that there is no level playing field or bargaining power is available with the State as only two players are selling vaccines, as on date in the country, viz., Serum Institute of India (Covishield) and Bharat Biotech (Covaxin).

It also states that apart from Covaxin (Bharat Biotech) and Covishield (Serum Institute of India), there are multiple other players at the global level whose vaccine have been successful, such as:

• Pfizer-BioNTech Covid-19 vaccine (by Pfizer Inc., USA)
• Moderna Covid-19 vaccine (by Moderna Biotech, USA)
• Johnson & Johnson Covid-19 vaccine (by Janssen Pharmaceutical Companies, USA)
• AstraZeneca-Oxford vaccine (by AstraZeneca, England)

Significantly, the plea submits,

"Involving multiple players in the field will also enable the State Governments to go for the best choice as also negotiate and develop bargaining power with the international players as also domestic companies for the supply of vaccines for immunizing its residents."

In light of the facts and circumstances stated forthwith, it has been prayed that:

• To initiate the exercise of inviting global tender at par with many other States as mentioned in the present petition for the procurement of a fixed lot of vaccines for immunizing an entire lot of its residents through a State-level immunization program.
• To issue appropriate writ/order/direction directing the Central Government and its agencies, specifically, CDSCO to take a final decision on the applications of various international manufacturers of Covid-19 vaccines,
• To issue appropriate writ/order/direction directing the Respondent, State Government, for issuing appropriate orders and directions in the exercise of its executive power available under Article 162 of the Constitution of India, fixing the upper cap/ceiling on the rate at which such vaccines (after procurement through a global tender) shall be supplied and administered to the residents of the State of Madhya Pradesh by both the public as well as private players.