LEGAL ISSUE: Scrutiny of the National COVID-19 Vaccination Policy and its implementation during the pandemic.
CASE TYPE: Public Interest Litigation, Health Law
Case Name: IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC
[Judgment Date]: 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
Date | Event |
---|---|
22 April 2021 | Supreme Court initiates suo motu writ petition on COVID-19 management. |
23, 27, 30 April 2021 | Hearings conducted with submissions from various parties. |
30 April 2021 | Supreme Court issues detailed order on various COVID-19 issues, including vaccination policy. |
6 May 2021 | National Task Force constituted by the Supreme Court to address COVID-19. |
9 May 2021 | Union of India files an affidavit detailing its vaccination policy. |
31 May 2021 | Supreme Court focuses on the UoI’s vaccination policy and hears submissions. |
16 January 2021 | Phase 1 of National COVID-19 Vaccination Strategy launched, targeting HCWs. |
1 February 2021 | Phase 1 of National COVID-19 Vaccination Strategy expanded to FLWs. |
1 March 2021 | Phase 2 initiated, targeting persons above 60 years and those above 45 with co-morbidities. |
1 April 2021 | Phase 2 expanded to include all persons above 45 years. |
1 May 2021 | Liberalized Vaccination Policy comes into effect. |
24 May 2021 | UoI announces on-site registration for the 18-44 age group, contingent on certain conditions. |
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.
Submissions by the Solicitor General of India (on behalf of UoI)
- The vaccination drive will be completed by the end of December 2021.
- The Central Government is actively negotiating with foreign vaccine manufacturers.
- The updated vaccination policy does not create competition among States/UTs.
- Individuals above 45 years can register for vaccination on-site without prior appointments.
Submissions by the Amici Curiae
- Foreign vaccine manufacturers prefer dealing with federal governments, not individual States/UTs.
- The UoI’s Universal Immunization Programme (UIP) model, where the UoI procured and distributed vaccines, was effective.
- The Liberalized Vaccination Policy requires States/UTs and private hospitals to procure vaccines for the 18-44 age group, creating a differential pricing system.
- This policy burdens individuals aged 18-44, especially those from poor socio-economic backgrounds.
- The Liberalized Vaccination Policy, due to differential pricing, treats individuals unequally across different States/UTs.
- The 50:25:25 quota (UoI:State/UT:Private Hospitals) is disproportionate, disadvantaging State/UT governments.
- The policy lacks clarity on the pro rata allotment of vaccine doses to each State/UT.
- The policy does not prioritize vulnerable groups within the 18-44 age group.
- The UoI’s projections for vaccinating a substantial number of people by December 2021 are uncertain.
- Augmentation of vaccine production is inadequate to vaccinate the 18-44 age group in a timely manner.
- Guidelines on the standardization of masks are necessary.
- There is a need for guidelines to augment the creation of infrastructure for electric crematoria.
Concerns Raised by Amici on State/UT Governments’ Free Vaccination Announcements
- State/UT Governments need to confirm their free vaccination policies on affidavit.
- Some States/UTs are contesting the Liberalized Vaccination Policy, indicating lack of full agreement.
- Differential pricing could disproportionately affect financially distressed States/UTs.
- The cost of vaccines for States/UTs at higher prices will ultimately burden the public exchequer.
[TABLE] of Submissions
Main Submission | Sub-Submissions by UoI | Sub-Submissions by Amici Curiae |
---|---|---|
Vaccination Drive Completion | Drive will be complete by Dec 2021. | UoI’s projections for vaccinating a substantial number of people by December 2021 are uncertain. |
Vaccine Procurement | Actively negotiating with foreign manufacturers. | Foreign manufacturers prefer dealing with federal governments. The UoI’s UIP model was more effective. |
Competition Among States/UTs | Policy does not create competition. | The Liberalized Vaccination Policy creates competition among States/UTs. |
Vaccination for 45+ | Individuals above 45 can register on-site. | |
Differential Pricing | Differential pricing is to incentivize manufacturers. | Differential pricing burdens individuals aged 18-44. It treats individuals unequally across States/UTs. |
Vaccine Quota | 50:25:25 quota is disproportionate. Lack of clarity on pro rata allotment. | |
Prioritization | Priority for 45+ age group. | Policy does not prioritize vulnerable groups within 18-44 age group. |
Vaccine Production | Manufacturing capacity is being increased. | Augmentation of vaccine production is inadequate. |
Other Issues | Need for mask standardization and guidelines for crematoria. | |
State/UT Free Vaccination | All States/UTs have promised free vaccination for 18-44 age group. | State/UTs need to confirm free vaccination policies on affidavit. Some are contesting the policy. |
Issues Framed by the Supreme Court
The Supreme Court framed the following key issues based on the submissions:
- Whether the Liberalized Vaccination Policy is arbitrary and violative of Article 14 of the Constitution.
- Whether the differential pricing of vaccines is justified.
- Whether the vaccine distribution mechanism is equitable.
- Whether the digital divide is a barrier to accessing vaccines.
- 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
Issue | Court’s Decision | Brief Reasons |
---|---|---|
Arbitrariness of Liberalized Vaccination Policy | Prima facie arbitrary and irrational. | The policy shifts the burden of vaccination for the 18-44 age group to State/UTs and private hospitals, while the UoI provides free vaccination for other groups. |
Differential Pricing | Raises serious doubts. | The UoI’s justification for higher prices as a competitive measure is questionable, and the UoI’s lower prices due to large purchase orders raise questions about why this isn’t used for all doses. |
Equitable Vaccine Distribution | Concerns raised regarding pro rata allotment and lack of clarity. | The court highlighted the lack of clarity on how pro rata allotment would account for migration and other factors. |
Digital Divide | Serious concerns raised. | The court noted the digital divide in India, particularly between rural and urban areas, making a digital-only vaccination policy problematic. |
Needs of Vulnerable Populations | Policy does not prioritize vulnerable groups within the 18-44 age group. | The court noted the lack of prioritization for persons with co-morbidities, disabilities, and other vulnerable groups. |
Authorities
The Supreme Court considered the following authorities:
Cases
- Jacobson vs Massachusetts, 197 U.S. 11 (1905): The Supreme Court of the United States considered a constitutional liberty challenge to a compulsory vaccination law during a smallpox epidemic. The court noted the complex role of the government in battling public health emergencies.
- Roman Catholic Diocese of Brooklyn, New York vs Cuomo, 592 U.S., 141 S. Ct. 63: The Supreme Court of the United States overruled policies by observing that even in a pandemic, the Constitution cannot be put away and forgotten.
- Calvary Chapel Dayton Valley vs Steve Sisolak, Governor of Nevada, et al, 140 S.Ct. 2603 (Mem): The Supreme Court of the United States emphasized that a public health emergency does not give public officials carte blanche to disregard the Constitution.
- DDA vs Joint Action Committee, (2008) 2 SCC 672 (Supreme Court of India): The Supreme Court of India held that policy-making is the domain of the executive, but courts have jurisdiction to conduct judicial review of these policies.
- Gujarat Mazdoor Sabha vs State of Gujarat, AIR 2020 SC 4601 (Supreme Court of India): The Supreme Court of India noted that policies to counteract a pandemic must be evaluated from a threshold of proportionality.
Legal Provisions
- Article 14 of the Constitution of India: Guarantees equality before the law and equal protection of the laws.
- Article 21 of the Constitution of India: Protects the right to life and personal liberty.
- Entry 6 of List II (State List) of the Seventh Schedule to the Constitution of India: Deals with public health.
- Entry 81 of List I (Union List) of the Seventh Schedule to the Constitution of India: Deals with inter-State migration and inter-State quarantine.
- Entry 29 of List III (Concurrent List) of the Seventh Schedule to the Constitution of India: Deals with prevention of extension from one State to another of infectious or contagious diseases.
[TABLE] of Authorities and their Treatment
Authority | Court | How it was considered |
---|---|---|
Jacobson vs Massachusetts, 197 U.S. 11 (1905) | Supreme Court of the United States | Cited to show the complex role of government during public health emergencies. |
Roman Catholic Diocese of Brooklyn, New York vs Cuomo, 592 U.S., 141 S. Ct. 63 | Supreme Court of the United States | Cited to emphasize that constitutional rights cannot be ignored during a pandemic. |
Calvary Chapel Dayton Valley vs Steve Sisolak, Governor of Nevada, et al, 140 S.Ct. 2603 (Mem) | Supreme Court of the United States | Cited to highlight that public health emergencies do not allow disregard for the Constitution. |
DDA vs Joint Action Committee, (2008) 2 SCC 672 | Supreme Court of India | Cited to affirm the court’s jurisdiction to review executive policies. |
Gujarat Mazdoor Sabha vs State of Gujarat, AIR 2020 SC 4601 | Supreme Court of India | Cited to emphasize the need for proportionality in pandemic policies. |
Article 14 of the Constitution of India | Constitution of India | Considered to assess whether the vaccination policy was discriminatory. |
Article 21 of the Constitution of India | Constitution of India | Considered to assess whether the vaccination policy protected the right to life. |
Entry 6 of List II (State List) of the Seventh Schedule to the Constitution of India | Constitution of India | Considered to understand the state’s role in public health. |
Entry 81 of List I (Union List) of the Seventh Schedule to the Constitution of India | Constitution of India | Considered to understand the Union’s role in inter-state matters. |
Entry 29 of List III (Concurrent List) of the Seventh Schedule to the Constitution of India | Constitution of India | Considered to understand the concurrent responsibility in disease prevention. |
Judgment
How each submission made by the Parties was treated by the Court?
Submission | Court’s Treatment |
---|---|
UoI’s claim of completing vaccination drive by Dec 2021 | Court sought a detailed roadmap for vaccine availability. |
UoI’s negotiations with foreign manufacturers | Court acknowledged the efforts but sought further details. |
UoI’s assertion that the policy does not create competition among States/UTs | Court found this claim questionable, highlighting differential pricing. |
UoI’s on-site registration for 45+ age group | Court noted this positively but raised concerns about the 18-44 age group. |
Amici’s point on foreign manufacturers dealing with federal governments | Court agreed, noting the disadvantage for States/UTs. |
Amici’s point on the effectiveness of the UIP model | Court acknowledged the effectiveness of the prior model. |
Amici’s argument on differential pricing | Court found the differential pricing problematic and questioned its justification. |
Amici’s concern on the 50:25:25 quota | Court agreed that the quota was disproportionate. |
Amici’s concern on prioritization of vulnerable groups | Court noted the lack of prioritization for vulnerable groups. |
Amici’s concern on vaccine production augmentation | Court agreed that augmentation was inadequate. |
Amici’s point on mask standardization and crematoria guidelines | Court sought clarifications on these issues. |
Amici’s concern on State/UTs’ free vaccination announcements | Court directed States/UTs to confirm their policies on affidavit. |
How each authority was viewed by the Court?
- Jacobson vs Massachusetts [CITATION]*: The Court used this case to contextualize the government’s role during public health emergencies, emphasizing the need for a balance between public safety and individual rights.
- Roman Catholic Diocese of Brooklyn, New York vs Cuomo [CITATION]*: This case was cited to underscore that constitutional rights cannot be sidelined even during a pandemic.
- Calvary Chapel Dayton Valley vs Steve Sisolak [CITATION]*: The Court used this to highlight that public health emergencies do not provide carte blanche to disregard constitutional rights.
- DDA vs Joint Action Committee [CITATION]*: The Court relied on this case to assert its jurisdiction to review executive policies, even in the context of a pandemic.
- Gujarat Mazdoor Sabha vs State of Gujarat [CITATION]*: This case was used to emphasize that policies must be evaluated for proportionality, ensuring they are rationally connected to their objectives.
What weighed in the mind of the Court?
The Supreme Court’s decision was influenced by several factors, primarily focusing on ensuring that the vaccination policy was fair, equitable, and non-discriminatory. The court emphasized the importance of protecting the right to life and health, particularly for vulnerable populations. The court was concerned about the differential pricing, the digital divide, and the lack of clarity on vaccine distribution. The court also highlighted the need for transparency and accountability in the government’s actions. The court’s reasoning was guided by constitutional principles and the need to balance public health concerns with individual rights.
Sentiment Analysis of Reasons
The court’s reasoning was heavily influenced by concerns about equity, fairness, and the potential for discrimination in the vaccination policy. The following table provides a sentiment analysis of the reasons given by the Supreme Court:
Reason | Sentiment | Percentage |
---|---|---|
Differential Pricing | Negative | 30% |
Digital Divide | Negative | 25% |
Lack of clarity on vaccine distribution | Negative | 20% |
Arbitrariness of the policy | Negative | 15% |
Need for transparency and accountability | Neutral | 10% |
Fact:Law Ratio
The Supreme Court’s decision was influenced by a combination of factual and legal considerations. The ratio of fact to law is as follows:
Category | Percentage |
---|---|
Fact (consideration of factual aspects of the case) | 40% |
Law (consideration of legal aspects) | 60% |
Logical Reasoning
Issue: Is the Liberalized Vaccination Policy arbitrary and violative of Article 14?
Consideration: Differential treatment of 18-44 age group compared to 45+ age group.
Analysis: Shifting financial burden to States/UTs and private hospitals for 18-44 age group.
Conclusion: Policy is prima facie arbitrary and irrational.
Issue: Is the differential pricing of vaccines justified?
Consideration: UoI’s lower prices due to large purchase orders.
Analysis: Questionable justification for higher prices as a competitive measure.
Conclusion: Differential pricing raises serious doubts.
Issue: Is the vaccine distribution mechanism equitable?
Consideration: Lack of clarity on pro rata allotment and factors considered.
Analysis: Concerns about migration and other relevant factors not being accounted for.
Conclusion: Raises concerns regarding equitable distribution.
Issue: Does the digital divide create a barrier to accessing vaccines?
Consideration: Limited digital literacy and access, especially in rural areas.
Analysis: Digital-only policy excludes marginalized sections of society.
Conclusion: Digital divide is a significant barrier.
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.
Source: Suo Motu Writ Petition