SC slams govt's vaccination policy as 'prima facie arbitrary'

Observing courts cannot be 'silent spectators' when constitutional rights of citizens are infringed by executive policies, the Supreme Court on Wednesday slammed the Centre's COVID vaccination policy, describing as 'prima facie arbitrary and irrational' allowing states and private hospitals to charge those in the 18-44 age group while the jabs were offered free for groups in the first two phases, and ordered its review.

Seeking to scrutinise the COVID vaccination policy in detail, the top court also asked the Centre to provide information including as to how Rs 35,000 crore, earmarked for vaccines, has been spent so far, and to place on record all relevant documents and file notings reflecting its thinking culminating in the policy.

The apex court's May 31 order, uploaded on its site on Wednesday, was critical of the Centre's decisions on liberalised vaccination policy, differential pricing of vaccines for Centre, states and private hospitals, basis of such a norm and mandatory registration on CoWIN App for booking slots for jabs in view of huge digital divide between rural and urban India and sought response from the government on its queries in in two weeks.

The apex court said that in grappling with the second wave of the COVID pandemic, it does not intend to second-guess the wisdom of the executive when it chooses between two competing and efficacious policy measures.

The court, however, added that it will continue to exercise jurisdiction to determine 'if the chosen policy conforms to the standards of reasonableness, militates against manifest arbitrariness and protects the right to life of all persons'.

'Constitution does not envisage courts to be silent spectators when constitutional rights of citizens are infringed by executive policies,' the bench said in its order in a hard hitting response to the Centre's submissions in an affidavit that the judiciary should not enter into the policy making domain.

'The Union Budget for Financial Year 2021-2022 had earmarked Rs 35,000 crore for procuring vaccines. In light of the Liberalized Vaccination Policy, the Central Government is directed to clarify how these funds have been spent so far and why they cannot be utilized for vaccinating persons aged 18-44 years,' said a special bench of Justices D Y Chandrachud, L Nageswara Rao and S Ravindra Bhat.

'We direct the Union of India(UoI) to undertake a fresh review of its vaccination policy addressing the concerns raised,' said the order which is a part of a series of judicial decisions rendered on the suo motu case on COVID-19 management in the country.

Finding fault with the vaccination policy, it said unlike the previous one, it did not prioritise persons with comorbidities and this became important in view of the fact that in the second wave, persons between 18-44 years of age have suffered severe effects of infection including deaths in unfortunate cases.

'Due to the changing nature of the pandemic, we are now faced with a situation where the 18-44 age group also needs to be vaccinated, although priority may be retained between different age groups on a scientific basis.

'Hence, due to the importance of vaccinating individuals in the 18-44 age group, 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,' Justice Chandrachud said in the 32-page order.

The court asked the Centre to provide the data on the percentage of population that has been vaccinated (with one dose and both doses), as against eligible persons in the first three phases of the vaccination drive.

'This shall include data pertaining to the percentage of rural population as well as the percentage of urban population so vaccinated,' it said asking the Centre to furnish each and every detail sought.

The bench also sought 'complete data' of the Centre's purchase history of all the COVID-19 vaccines -- Covaxin, Covishield and Sputnik V-- till date.

'The data should clarify: (a) the dates of all procurement orders placed by the Central Government for all 3 vaccines; (b) the quantity of vaccines ordered as on each date; and (c) the projected date of supply; and an outline for how and when the Central Government seeks to vaccinate the remaining population in phases 1, 2 and 3.'

The court has sought information on the steps being taken by the Centre to ensure drug availability for mucormycosis which is also called 'Black Fungus'.

Taking note of the Centre's reply that states and UTs will provide vaccination free of cost to its population, the court said it is important that individual states and UTs may 'confirm or deny' this position before this Court.

'Further, if they have decided to vaccinate their population for free then, as a matter of principle, it is important that this policy is annexed to their affidavit, so that the population within their territories can be assured of their right to be vaccinated for free at a state vaccination centre.

'Hence, we direct each of the State/UT Governments to also file an affidavit within 2 weeks, where they shall clarify their position and put on record their individual policies,' the bench said.

Trashing the Centre's objection that judiciary should not enter into the policy making domain, the bench said it is trite to state that separation of powers is a part of the basic structure of the Constitution and policy-making continues to be in the sole domain of the executive.

'The judiciary does not possess the authority or competence to assume the role of the executive, which is democratically accountable for its actions and has access to the resources which are instrumental to policy formulation. However, this separation of powers does not result in courts lacking jurisdiction in conducting a judicial review of these policies.

'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.'

The top court asked the Centre to clarify its stand on the roadmap of the projected availability of vaccines till 31 December 2021, the preparedness with respect to specific needs of children in the event of a third wave of the pandemic in terms of medical infrastructure, vaccination trials and regulatory approval, and compatible drugs.

It has sought information whether under the Centre's policy, it is permissible for the states and UTs or individual local bodies to access vaccine supplies of foreign manufacturers.

The court also sought numbers of crematorium workers vaccinated in phase one and asked whether a targeted drive can be conducted for vaccination of the remaining workers in this category.

'The State/UT Governments are diverting the vaccines (procured by them at a higher price than Central Government) for the persons in the age group of 18-44 years to vaccinate persons above 45 years of age, due to a shortage of vaccines being supplied by the central government.

'The manner in which the central government will factor this quantity and price differential into their subsequent allocation and disbursal of vaccines to States/UTs for the persons above 45 years of age; and the mechanism for redistribution, if the 25:25 quota in a particular State/UT is not picked up by the State/UT Government or the private hospitals,' the order said while seeking details.