The Supreme Court raised tough questions to the Centre on Monday about the Centre’s motive of the dual pricing and procurement policy of the Covid-19 vaccines. The Court asked if it was the Central Government’s policy to let States compete with each other to get vaccines from private manufacturers and let states and even municipal corporations hover over global tenders to get foreign vaccines.
A three-judge bench consisting of Justice DY Chandrachud, L Nageswara Rao and S Ravindra Bhat was hearing the suo moto case on Covid-19 issues on the Redistribution of Essential Services and Supplies During Pandemic on May 31.
“We are not framing policy. There’s an order of April 30 that these are the problems. You will be flexible. You can’t just say that you’re the Centre and you know what’s right. We have a strong arm to come down on this”, Justice Chandrachud told Mr.Tushar Mehta, Solicitor General of India, whenhe said that these are policy issues on which the Court has definite judicial review power.
Justice Chandrachud said that they are not changing the policy. They are asking to please wake up and smell the coffee and see what’s happening across the country.
Justice S Ravindra Bhat asked the Solicitor General that we want to address the dual pricing policy. You are asking the States to select and compete with each other.
The SG countered that it is factually wrong to say that States are competing with each other for getting vaccines.
Justice Chandrachud observed few concerns and a spectacle where different municipal corporations and states are issuing global tenders. He wants to know if this was the Government of India’s policy, that every Municipal corporation, every State is left to their own to get the vaccine. Does the Indian Government consider that there will be individual states or corporations submitting bids for the procurement for foreign vaccines, or will they be a nodal agency for the bids.
Justice Ravindra Bhat said that the bar wanted to look into the files of Government policy to understand the rationale. While the Centre says it will procure at a lesser price, and manufacturers are free to fix prices at their own whims, why the pricing of 50% vaccines is left to manufactures.
The SG said that states or municipal corporations issuing tenders might be “academic” as companies such as Pfizer, Moderna, etc., have a policy of dealing with only the national governments.
However, Justice Chandrachud retaliated by pointing out that the Mumbai Municipal Corporation received bids for Sputnik.” I was reading the Constitution. Article 1 says that Bharat is a Union of States. When the Constitution says that, then we follow the federal rule. Then Government of India has to procure the vaccines and distribute it. The individual States are left in a lurch.”
The SG responded that he was “earnestly urging” the bench not to travel this path of examining the vaccine pricing issue as it might hamper the vaccination program.
“We are only questioning the role of the Centre,” Justice Bhat replied. “We want the rationale of the dual policy. What is the rationale? If there is enough, then we will leave it. We will not hamper you in the negotiation. I don’t know where you got this from”, he continued.
The bench also questioned the rationale for giving different treatment to the age group of 18-44 years regarding vaccination, as the Center provides free vaccines only to the 45+ age group. In this regard, the bench referred that the 18-44 age group was severely affected during the second wave of the pandemic.
“For 45+, 50% of what is available is determined pro rat rata by the Centre. The rest of the 50% is going to be handed over to private hospitals. Our issue is what is the basis for the Centre to say that for 45+ we will provide vaccines free of charge, and for rest, it will be procured at a charge. You have constantly told us that the situation is dynamic. In the second wave, it was the Pre-45 population that also suffered a great deal. Why should the Centre only procure for 45 and leave the ones below on their own? What is the rationale? Can we say that 50% of the population between 18 to 45 will be able to afford the vaccines? Not at a Not at all”, Justice Chandrachud observed.
Justice Chandrachud pointed out how the Centre looks at the marginalized and those who can’t provide for themselves. How does the Centre justify for States like Goa and Uttarakhand who have to procure them all on their own? If it is the rationale, why do States have to pay a higher price? The Centre must ensure that vaccines are available at the same price across the nation. They can’t have a different price at the Centre and different at the states, he added.
“Are you willing to state today that the Centre will take the responsibility of ensuring that States will get the vaccine? That will resolve the entire problem “, the judge asked.
The bench also probed questions about making COWIN registration compulsory for getting vaccine slots.
“What about the digital divide? Everyone has to register on COWIN. Is it realistically possible for people in rural areas to start registering on this app? How do you expect them to do that? Our own law clerks and friends have tried. Why are we not treating people with comorbidities and those who are marginalized on the same plane ?” the judge raised his concerns.
The judge further asked if it’s practical that they have to get registered at a common center, even in the villages.
“This is rare fear amongst the people. I have gotten distress calls from people across the country that they’re not getting slots. They’re all gone within seconds”, Justice Bhat said.
The bench has adjourned the hearing by two weeks asking the Central government to file an affidavit replying to the concerns conveyed by the judges.
On April 30, the bench had probed several relevant queries regarding the Central Government’s vaccination policy, distribution of essential medicines, and allocation of oxygen to states. The bar had made a prima facie observation that the Centre’s vaccination was prejudicious to citizens’ right to health and required a revisit to make it conform to the laws of Articles 14 and 21 of the Constitution. The Court had also recommended that the Centre should explore options like mandatory licensing over Covid-19 vaccines, drugs and that the vaccines should be centrally procured from manufacturers.
In response, the Central government has filed an affidavit, saying that its vaccination policy was formulated based on widespread consultations with experts and stakeholders and was therefore conforming with Articles 14 and 21. The Centre also confronted policy’s judicial review by saying “any overzeal overzealous, though well-meaning judicial intervention may lead to unforeseen and unintended consequences.”
