Supreme Court Intervenes on National Vaccination Policy: Suo Motu Writ Petition (Civil) No.3 of 2021 (31 May 2021)

Date of the Judgment: 31 May 2021

Citation: Suo Motu Writ Petition (Civil) No.3 of 2021

Judges: Dr Dhananjaya Y Chandrachud, J, L Nageswara Rao, J, S Ravindra Bhat, J

Can a national vaccination policy, designed during a public health crisis, be discriminatory or arbitrary? The Supreme Court of India, in this suo motu writ petition, examined the Union of India’s (UoI) vaccination policy, particularly the Liberalized Vaccination Policy introduced on 1 May 2021. The court scrutinized the policy’s differential pricing, vaccine distribution, and digital divide implications, ensuring it adhered to constitutional standards of reasonableness and non-arbitrariness. The bench comprised Justices Dr. Dhananjaya Y Chandrachud, L. Nageswara Rao, and S. Ravindra Bhat, with the opinion being authored by Dr. Dhananjaya Y Chandrachud, J.

Case Background

On 22 April 2021, the Supreme Court of India initiated a suo motu writ petition to address the management of the COVID-19 pandemic during its second wave. The court conducted hearings on 23, 27, and 30 April 2021, where submissions were presented by the Union of India, States/Union Territories, and Amici Curiae. The court issued a detailed order on 30 April 2021, addressing various issues including the vaccination policy, supply of essential drugs and medical oxygen, and freedom of speech during the pandemic. The court directed the UoI to reconsider its policies based on the court’s observations. Following this, a two-judge bench also addressed issues related to medical oxygen supply to Delhi and constituted a National Task Force to provide a scientific public health response to the pandemic. On 31 May 2021, the court focused on the UoI’s vaccination policy after reviewing an affidavit filed by the UoI on 9 May 2021, along with submissions from the Solicitor General of India and the Amici Curiae.

Timeline

Course of Proceedings

The Supreme Court initially took suo motu cognizance of the COVID-19 situation, leading to multiple hearings and orders. Following the 30 April 2021 order, a separate bench addressed oxygen supply issues in Delhi and formed the National Task Force. The court then focused on the vaccination policy, reviewing the UoI’s affidavit and hearing arguments from the Solicitor General and Amici Curiae. This shift in focus was due to the receding second wave and the critical importance of vaccination in combating the pandemic.

Legal Framework

The Supreme Court considered several constitutional provisions and legal principles:

• Separation of Powers: The court acknowledged the executive’s role in policy-making but asserted its jurisdiction to review policies for constitutional compliance.
• Article 14 of the Constitution: The court examined whether the vaccination policy was arbitrary and discriminatory, violating the right to equality.
• Article 21 of the Constitution: The court assessed whether the policy protected the right to life, which includes the right to health.
• Entry 6 of List II (State List) of the Seventh Schedule to the Constitution: Deals with public health, which is primarily a state subject.
• Entry 81 of List I (Union List) of the Seventh Schedule to the Constitution: Deals with inter-State migration and inter-State quarantine.
• Entry 29 of List III (Concurrent List) of the Seventh Schedule to the Constitution: Deals with prevention of extension from one State to another of infectious or contagious diseases.

The court also referred to the principle of proportionality, ensuring that measures taken during a pandemic are rationally connected to their objective and are necessary.

Arguments

The arguments presented before the Supreme Court highlighted several critical issues with the Liberalized Vaccination Policy.

Issues Framed by the Supreme Court

The Supreme Court framed the following key issues based on the submissions:

1. Whether the Liberalized Vaccination Policy is arbitrary and violative of Article 14 of the Constitution.
2. Whether the differential pricing of vaccines is justified.
3. Whether the vaccine distribution mechanism is equitable.
4. Whether the digital divide is a barrier to accessing vaccines.
5. Whether the policy adequately addresses the needs of vulnerable populations.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

The Supreme Court’s decision was driven by a need to ensure that the vaccination policy was consistent with the principles of equality, non-arbitrariness, and the right to health. The court sought to address the concerns raised by various stakeholders and ensure that the policy was not discriminatory or unfair to any section of the population.

The court noted that the Liberalized Vaccination Policy, while aiming to decentralize the process, has led to several issues, including differential pricing, unequal access, and a lack of prioritization for vulnerable groups. The court emphasized that the UoI, as the central authority, has a responsibility to ensure that all citizens have equitable access to vaccines. The court also highlighted the importance of transparency and accountability in the government’s actions.

The court observed that the policy of the Central Government for conducting free vaccination themselves for groups under the first 2 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 court also noted that, “The current Liberalized Vaccination Policy enables State /UT Governments and private hospitals to procure 50% of the monthly CDL approved doses in the country at a pre-fixed price. The justification for this Policy has been adduced in a bid to spur competition which would attract more private manufacturers that could eventually drive down prices. Prima facie, the only room for negotiation with the two vaccine manufacturers was on price and quantity, both of which have been pre-fixed by the Central Government. This casts serious doubts on UoI’s justification for enabling higher prices as a competitive measure”

Further, the court observed that, “A vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between the ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide. It is the marginalized sections of the society who would bear the brunt of this accessibility barrier. This could have serious implications on the fundamental right to equality and the right to health of persons within the above age group.”

Key Takeaways

• The Supreme Court has emphasized that vaccination policies must be non-arbitrary and equitable, ensuring that all citizens have access to vaccines.
• Differential pricing for vaccines raises serious concerns about equality and fairness.
• The digital divide poses a significant barrier to accessing vaccines for marginalized populations.
• The UoI has a responsibility to ensure equitable distribution of vaccines and to address the concerns raised by the court.
• The court has directed the UoI to review its vaccination policy and provide clarifications on various issues.
• State/UT Governments were directed to clarify their position on providing free vaccination to their population.

Directions

The Supreme Court directed the UoI to:

• Undertake a fresh review of its vaccination policy addressing the concerns raised.
• Provide a roadmap of projected vaccine availability until 31 December 2021.
• Clarify preparedness for children in the event of a third wave.
• Clarify if State/UTs can access foreign vaccine supplies.
• Provide data on crematorium workers vaccinated.
• Address the issue of States diverting vaccines for the 18-44 age group to those above 45 years.
• Clarify the rationale for the 50:25:25 quota.
• Provide information on the pro rata allotment of vaccines.
• Provide clarification on the standardization of masks.
• Provide guidelines for augmenting infrastructure for electric crematoria.
• Clarify the policy on on-site registration for the 18-44 age group.
• Clarify the policy on the procurement of vaccines by private hospitals.
• Clarify the policy on the procurement of vaccines by State/UT governments.
• Clarify the policy on the pricing of vaccines for private hospitals.
• Clarify the policy on the pricing of vaccines for State/UT governments.
• Clarify the policy on the pricing of vaccines for the UoI.
• Clarify the policy on the prioritization of vulnerable groups within the 18-44 age group.
• Clarify the policy on the timeline for vaccination of the 18-44 age group.

The Court also directed the State/UT Governments to:

• Confirm their free vaccination policies on affidavit.
• Clarify the steps taken to ensure equitable access to vaccines.
• Clarify the steps taken to address the digital divide.