3 min read.Updated: 03 Jun 2021, 06:03 AM ISTUtkarsh Anand
The Supreme Court to examine if policy is in breach of constitutional right to equality under Article 14
Policy rolled out on 1 May ‘conflicts with the constitutional balance of responsibilities between Centre and states’, says the Supreme Court
The Supreme Court said the central government’s vaccination policy is “prima facie arbitrary and irrational" in the way it seeks to introduce paid inoculation by states and private hospitals for 18-44-year-olds after keeping it free for those above 45.
The top court said the liberalized vaccination policy introduced on 1 May “conflicts with the constitutional balance of responsibilities between the Centre and states" by putting the entire burden of inoculating those in the 18-44 age group on the latter.
The bench, headed by justice Dhananjaya Y. Chandrachud, asked the Union government to explain how the ₹35,000 crore earmarked for procuring vaccines in the Union Budget for 2021-22 has been spent and why the money could not be used to vaccinate 18-44-year-olds.
The court also decided to examine whether the vaccination policy was in breach of the constitutional right to equality under Article 14. It noted that if the Centre’s unique monopolistic buyer position was the only reason for it receiving vaccines at a much lower price from manufacturers, then the rationality of the vaccination policy had to be scrutinized “since it could place severe burdens, particularly on states and Union territories (UTs) suffering from financial distress".
The bench, which included justices L. Nageswara Rao and S. Ravindra Bhat, added that “marginalized sections of society would bear the brunt of the accessibility barrier" under the policy since it relied exclusively on a digital platform (CoWIN) for registration. This, it warned, could have “serious implications on the fundamental right to equality and the right to health of people."
Under the liberalized vaccination policy for the 18-44 age group, the total vaccines produced by Serum Institute and Bharat Biotech have to be divided in a ratio of 50:25:25 between the Centre, states/UTs and private hospitals.
While the Centre is paying manufacturers ₹150 per dose, states are buying Serum’s Covishield for ₹300 a dose and Bharat Biotech's Covaxin for ₹600 a dose. Private hospitals are getting it at double the price paid by states. Both vaccines are administered in two doses.
In its order released on Wednesday after Monday’s proceedings in the suo motu case on management of the second covid wave, the bench marked several flaws in the vaccination policy, directing the Centre “to undertake a fresh review of its vaccination policy" since vaccination of the nation’s entire eligible population is the “most important task in effectively combating the pandemic in the long run".
The court sought an affidavit by the Centre in two weeks with specific details on the percentage of people vaccinated (single dose and double dose) as against all eligible persons in rural and urban areas; an outline for how and when the Centre seeks to vaccinate the remaining population; complete data on the purchase history of vaccines, orders made and projected dates of supply as well as the steps being taken to ensure drug availability for mucormycosis (black fungus).
The court further requisitioned copies of all relevant documents and file noting from the government, “reflecting its thinking and culminating in the vaccination policy". States and UTs have also been directed to clarify through affidavits before the next date of hearing on 30 June if they have decided to vaccinate their population for free.
The bench began its 32-page order by rejecting the Union government’s contention that any “over-zealous judicial intervention" by the Supreme Court in the vaccination policy may lead to unintended circumstances.
“Our Constitution does not envisage courts to be silent spectators when constitutional rights of citizens are infringed by executive policies. Judicial review and soliciting constitutional justification for policies formulated by the executive is an essential function, which the courts are entrusted to perform," said the court.
The court then cited the deficiencies in the vaccination policy, starting with the fact that the inoculation was open for the 18-44 age group in the third phase on a payment basis even though the experience in the second covid wave has shown people of this age group were also affected by the virus.
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