Supreme Court Says Modi’s Vaccine Policy Will Produce “Chaos And Uncertainty”

The government’s vaccine policy is detrimental to the right to public health under the Constitution, the apex court observed.

A health worker prepares a dose of Covaxin in the Covid-19 vaccination room at the Super Speciality Hospital Hospital in Srinagar, India. (Photographer: Sumit Dayal/Bloomberg)
A health worker prepares a dose of Covaxin in the Covid-19 vaccination room at the Super Speciality Hospital Hospital in Srinagar, India. (Photographer: Sumit Dayal/Bloomberg)

While the Supreme Court did not conclude on the constitutionality of the central government’s vaccine policy, it found that the manner in which the current policy is framed is detrimental to the right to public health as provided in Article 21 (right to life) of the Constitution.

The apex court’s order comes after a three-judge bench, led by Justice DY Chandrachud, took up, suo moto, the issue of distribution of essential supplies and services during the pandemic. In the hearing on Apr. 30 the court had asked several questions regarding the government’s policies on supply of oxygen, medical services and access to healthcare, as well as vaccination.

In its order, published on the court’s website on May 2, the court has given Prime Minister Narendra Modi’s government till May 10, the date of the next hearing, to revisit its initiatives and protocols on vaccination, as also on availability of oxygen and availability of of essential drugs at affordable prices.

On the issue of vaccines, while clarifying that the court did not seek to replace the government’s policy with its own, the bench raised concerns about the centre’s new vaccine policy - in which vaccines for those above 45 years, healthcare and frontline workers will be provided by the centre, whereas states will provide vaccines for those between 18-45 years.

Leaving the state governments to negotiate directly with manufacturers will produce chaos and uncertainty.
Supreme Court order

Vaccine Supply

The central government stated it new vaccine policy was an effort to give states a participatory role in the vaccination drive and thereby expand its scope. It also said, the 50% domestic production allocated to states was on a population-proportion basis to weed out geographical proximity bias.

The apex court made the following observations;

  • It will not be logical to oblige states to source vaccines for those between 18-45 years.
  • This will leave each state to negotiate supply schedules, delivery points and other logistical arrangements with the manufacturers.
  • The available stock of vaccines is not adequate to deal with the requirements of both categories.
  • The centre must provide guidance to states on vaccine supply, allocation, eligible people etc.

The court also asked the central government to clarify if it had introduced any initiatives to immunise those who do not have access to digital resources, as the current mandatory registration process is via the government’s Co-Win portal.

It also wanted to know if walk-in facilities would continue for those above 45 years after May 1, whether targeted vaccination drives would be undertaken for crematorium workers and other frontline staff in the second wave, and what steps were being undertaken to create nationwide awareness for the Covid-19 vaccination program.

Lack of identity proof should not deprive anyone of vaccination, the order said.

Will the centre “revisit its policy by procuring 100% of the doses which can then be equitably disbursed to the state governments,” the order queried.

How India’s Vaccine Drive Crumbled and Left a Country in Chaos

Vaccine Pricing

In its affidavit the centre claimed its new vaccine policy would instill a competitive market for vaccines, incentivise production and drive down prices.

Noting that the two domestic vaccine producers have quoted higher prices for states versus the centre, the bench, also comprising Justices Nageswara Rao and Ravindra Bhat, expressed similar concerns on vaccine pricing.

It is likely that compelling the state governments to negotiate with manufacturers on the ground of promoting competition and making it attractive for new vaccine manufactures will result in a serious detriment to those in the age group of 18 to 44 years, who will be vaccinated by the state governments.  
Supreme Court order

Vaccines are a “valuable public good” and discrimination cannot be made between citizens depending on a state’s ability to provide free vaccination, the court said. The centre is currently providing vaccines for those above 45 years free at government hospitals. States have been left to decide their own pricing for those in the 18-45 years group. Most have so far announced free vaccinations.

The rational method, according to the judges, would be for the centre to negotiate with manufacturers, procure the vaccines and states would distribute them. But no order was passed to this effect yet.

Instead, the court has asked the centre to explain

Whether any other alternatives were considered to ramp up vaccinations -- especially as it claimed its earlier policy was for a centralized free immunization drive which was changed to allow states to expand the scope of vaccinations.

What studies the centre relied on to claim that decentralised procurement would spur competition among manufacturers and drive down prices.

Whether these studies are of relevance in a pandemic when vaccines are a scarce and essential commodity which is being produced by a limited number of manufacturers for a limited number of vaccines.
Supreme Court order

Among the other probing questions it asked, the bench sought information on funding provided to vaccine producers. And, if the infusion of fund led to a lower price for the centre then why the same benefit had not been extended to states.

The order also discussed aspects of using compulsory licensing for vaccines and essential drugs, but only for consideration by the centre.

New Vaccine Policy: Can States Achieve What Modi Couldn’t?

Other Directions

The apex court also ordered -

That the deficit in the supply of oxygen to the GNCTD is rectified within 2 days from the date of the hearing, that is, on or before the midnight of 3 May 2021.

The centre alongwith states to prepare a buffer stock of oxygen for emergency purposes in four days (replenish daily) and decentralise the location of the emergency stocks.

Any clampdown on information on social media or harassment caused to individuals seeking/delivering help on any platform will attract contempt of court.

The centre to formulate a national policy on admissions to hospitals in two weeks, which shall be followed by all states.

Till the policy is formulated no patient shall be denied hospitalisation or essential drugs in any state or union territory for lack of local residential proof of that state/UT or even in the absence of identity proof .

Don’t Clamp Down On Citizen Voices: Justice Chandrachud Warns States