Central govt’s vaccine policy arbitrary: Supreme Court

The Supreme Court said the Centre’s policy of giving Covid vaccines free to some age groups and not to others was prima facie ‘arbitrary and irrational’, citing the experience during the second wave of the pandemic to state that all were equally vulnerable to the pandemic. The Supreme Court also sought an explanation on how the Rs 35,000 crore budgetary allocation for fighting the pandemic had been used so far and why it couldn’t be deployed to vaccinate the 18-44 segment for free.

The court urged the Centre to use its status as a monopolistic buyer in the world market to buy vaccines at a cheaper rate for state governments already in financial distress due to the pandemic. The bench sought clarity on whether it was permissible under the existing policy for state governments and other entities to access vaccine supplies from foreign manufacturers. The bench asked for details of vaccine orders placed so far.

It also sought to know the timeline by which the vaccination process would be completed and the justification for intervening in pre-fixing procurement prices and quantities for states, Union territories and private hospitals, but not imposing statutory price ceilings.

The three-judge bench led by justice DY Chandrachud sought a fresh affidavit from the Centre in two weeks explaining all these issues in the formal order posted Wednesday of proceedings that took place on Monday. The bench also included justices L Nageswara Rao and S Ravindra Bhatt. The affidavit should include “copies of all the relevant documents and file notings reflecting its thinking and culminating in the vaccination policy,” it said. The government was asked to share “complete data on purchase history of all the Covid-19 vaccines till date – Covaxin, Covishield and Sputnik V.

“The data should clarify dates of all procurement orders placed for all three vaccines; (b) quantity of vaccines ordered as on each date; (c) projected date of supply; and an outline for how and when the central government seeks to vaccinate the remaining population.” The Centre told the court on Monday that it expects to inoculate all Indians by end of the year.

GOVT’S PREPAREDNESS

The bench sought data on the percentage of the population vaccinated with one or both doses, as against eligible persons in the first three phases of the vaccination drive. This should include data on the rural-urban split as well. The court sought clarity on government preparedness with respect to the specific needs of children in the event of a third wave of the pandemic in terms of “medical infrastructure, vaccination trials and regulatory approval, and compatible drugs.” It asked for more information on the availability of drugs for mucormycosis, also known as black fungus, which has led to the deaths of some Covid patients. The court asked the states to clarify whether they would be providing vaccination free and whether the poor and the marginalised had been made aware of their entitlements. The government’s differential pricing for different categories of population came in for criticism.

The bench said the policy of providing vaccines free to the 45 and above category and not to the 18-44 segment was prima facie “arbitrary” and “irrational,” explaining the reasons for this. “The experience of the second wave of Covid 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,” it said. “Reports indicate that persons between 18-44 years of age have not only been infected by Covid-19, but have also suffered from severe effects of the infection, including prolonged hospitalisation and, in unfortunate cases, death.”

Due to the changing nature of the pandemic, the 18-44 age group also needs to be vaccinated, although priority may be retained between different age groups on a scientific basis, the court said. “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 two 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,” the bench said.

ALLOTMENT POLICY

The government said in April that it will pick up 50% of domestic vaccine production, leaving states and private hospitals to acquire the rest. The bench questioned aspects of this policy, which apportions the share of the Centre, states and private hospitals at 50:25:25. How will the Centre be sharing its quota pro rata with states, it asked. Will pro rata allotment take into account migration to more densely populated industrial and urban states and Union territories, the bench wanted to know.

Other factors such as state of the pandemic, healthcare infrastructure and existing capacities of a state, literacy rate, age and overall health condition of its population, may also be relevant in making such a determination, it said. The bench commended the cooperative efforts of the Centre and indigenous vaccine makers in developing jabs but sought more details on why the Centre was refusing to intervene statutorily to cap prices.