Before PM Modi changed Covid vaccine policy, a nudge from the Supreme Court

The court last week posed a string of questions for the Centre on its vaccine policy that it underscored, was “prima facie arbitrary and irrational”. It also rejected the government’s view that “any overzealous judicial intervention” by it may lead to unintended circumstances
The Supreme Court. (HT archive)
The Supreme Court. (HT archive)
Published on Jun 08, 2021 12:10 PM IST
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Prime Minister Narendra Modi on Monday announced that the Central government will resume procuring 75% of vaccines made in the country and giving them for free to states from June 21 to vaccinate all adults in the country.

PM Modi’s announcement, which marks a significant departure from the liberalised policy introduced on May 1, comes less than a week after the Supreme Court’s strong disapproval of the Centre’s policy along with a direction to the Union government “to undertake a fresh review of its vaccination policy”.

On June 2, a 32-page order by a bench comprising justices Dhananjaya Y Chandrachud, L Nageswara Rao and S Ravindra Bhat underscored that the Union government’s vaccination policy, which put the entire onus of giving doses to adults in the below-45 year age group on the states and private hospitals, was “prima facie arbitrary and irrational”.

The bench said the policy, which required people in the 18-45 age group to pay for the vaccine, “conflicts with the constitutional balance of responsibilities between the Centre and states” in conducting free vaccination themselves for groups under the first 2 phases.

The court’s June 2 order was a culmination of its proceedings on May 31 when the bench pressed for a review of the vaccination policy, observing that “policymakers must have their ears to the ground”.

To be sure, the Centre’s second-most senior law officer, solicitor general Tushar Mehta, strongly opposed judicial review of the vaccination policy, contending that “any overzealous judicial intervention” by the Supreme Court may lead to unintended circumstances.

But the bench rejected this argument, highlighting that the Constitution did 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.”

Mehta also asked the bench to desist from commenting on the pricing policy but the judges were emphatic on the lack of rationale and equity behind the “dual pricing” that requires states to pay at least twice as much as the Centre for the vaccines. The judges said the government should negotiate and buy vaccines for the entire country “in a national crisis” rather than leave states in the lurch.

Hearing a suo motu (registered on its own motion) case on the management of second Covid-19 wave, the court pointed out that if the Union government’s “unique monopolistic buyer position” was the only reason why it was getting the vaccine doses at a lower price, it was important for the so-called liberalised vaccination policy to be examined under Article 14 of the Constitution since “it could place severe burdens, particularly on states/UTs suffering from financial distress”. Article 14 guarantees the fundamental right to equality in India.

Nudging the Centre to utilise its position as the monopolistic buyer in the market and pass the benefit to all persons in the country, the court said that the “avoidable expense” due to the differential pricing will eventually hurt the welfare of individuals residing within those states and UTs.

Another cause for worry for the top court was the distinction drawn between those above 45 and those in the 18-45 age group under the Centre’s liberalised policy. The court asked why inoculation was open for 18-45 group in the third phase on a payment basis even though the experience of the second Covid-19 wave showed people of this age group were also affected.

“Can there be a justification for the Centre to now say that we will only take care of those who are above 45? We are aware that we don’t have time to enter the realm of policy-making but your policy has to be logical and reasonable,” the bench had asked the SG, seeking instructions if the Centre was ready to act like a national body for procurement of vaccines.

The court also asked the Union government to explain how 35,000 crore, earmarked for procuring vaccines in the Union Budget for 2021-2022, had been spent so far and why this amount could not be utilised for vaccinating persons in the 18-45 age group.

The bench will hear the case next on June 30.

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Tuesday, October 26, 2021