Supreme Court, Delhi High Court Raps Centre on Vaccination Policy

Manas Dasgupta

NEW DELHI, June 2: The central government was on Wednesday rapped by both the Supreme Court and the Delhi High Court for its “arbitrary and irrational” vaccination programme even as various state governments are joining hands to demand a centralized policy for speedy procurement and distribution of vaccines at no cost to the people.

The Centre’s policy of giving free vaccination to the 45-plus age group and a having paid system for those below, is “prima facie arbitrary and irrational”, the Supreme Court said today in its detailed order on the issue. Flagging several other loopholes, the court asked the Centre to review its vaccination policy and “place on record a roadmap of projected availability of vaccines till 31 December 2021.”

In a forthright criticism of the centre and its officers, the Delhi High Court came down heavily on the Centre for not fully utilising the Covid vaccine manufacturing capacity in the country. It went on to say that some people need to be “charged with manslaughter” if they have been just sitting over this untapped potential.  “What answer will you give for the loss of lives because of the lack of vaccines,” the court asked the Centre.

After the Kerala Chief Minister Pinarayi Vijayan wrote to 11 of his non-BJP counterparts seeking a united effort to press the Centre to procure COVID-19 vaccines and ensuring free universal vaccination on Tuesday, the Odisha chief minister Naveen Patnaik on Wednesday wrote letters to his counterparts in other states decrying centre’s policy to leave the states to compete with each other to procure enough vaccines for their respective people and recommended that all states come together to form a consensus on the matter in the “true spirit of cooperative federalism” to save lives and livelihoods. Several other chief ministers including West Bengal’s Mamata Banerjee and Delhi’s Arvind Kejriwal nodded in unison. The government has said it would vaccinate the eligible population by December this year — an announcement that has been met with much skepticism by critics and opposition parties.

Calling the issue of vaccination “absolutely crucial,” the Supreme Court said currently people in the 18-44 year age group are not just getting infected, but suffering from severe effects of the infection, “including prolonged hospitalization and, in unfortunate cases, death.”

The changing nature of the pandemic has created a situation where this younger age bracket also needs to be vaccinated, “although priority may be retained between different age groups on a scientific basis,” the court said.

“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,” the order read.

The top court, which took up the issue suo motu, also countered the Centre’s argument that judiciary must keep off from executive on policies. “Courts cannot be silent spectators when constitutional rights of citizens are infringed by executive policies,” the judges wrote in a hard-hitting comment on the centre’s advising the judiciary to keep off on policy matters.

The apex court also asked the centre to clarify how the 35,000 crores earmarked in the Union budget for procuring vaccines have been spent so far and why they cannot be utilized for vaccinating persons aged 18-44 years. It asked the government to file a detailed affidavit giving complete data on the purchase history of all the vaccines till date – Covaxin, Covishield and Sputnik V and the dates of all procurement orders; number of doses ordered; projected date of supply placing on record a roadmap of projected availability of vaccines till December 31.

The Delhi High Court which was hearing a complaint of a company against the centre for not releasing money awarded by an arbiter tribunal for manufacturing Sputnik V vaccine, came down heavily on the Centre for not fully utilising the Covid vaccine manufacturing capacity in the country.

“There is a lot of scope and infrastructure which is available for manufacturing of vaccines. This untapped potential has to be utilised. Your officers are not realising this. People from abroad are coming. You have good vaccines in India. You handhold these vaccine manufacturers and take them all over India and tell them this hub is available and use this. There is an emergency,” the division bench of Justices Manmohan and Najmi Waziri told the Centre.

The court also said the hand-holding of the vaccine manufacturers is missing which could be happening because of fear of vigilance or police investigations. “You have to tell them (officers) that this is not the time to be wary of these investigations or audit reports. This is leading to deaths today. Actually, some people need to be charged with manslaughter if they have been just sitting over this untapped potential,” added the court.

It further asked why it was necessary to test a vaccine being manufactured in India when exemptions from bridging trial are being provided for the same vaccines which are being imported from outside the country. “You can dispense with it. But you will not do it. What does it mean? You are just sitting over it and sticking by the rulebook when the rulebook itself says in emergent circumstances you can do that. If you had approved it one week again and taken a policy decision, surely the vaccine would have been available in the bazar,” the court said.

The court was hearing an application filed by Panacea Biotec for the release of the money awarded to it in 2019 by an arbitral tribunal. The company, which has collaborated with the Russian Direct Investment Fund, would be deprived of the opportunity to manufacture Sputnik V vaccine at “fastest pace” in case the awarded money is not released, it has told the court in the application. An award was passed in favour of Panacea Biotec in 2019 but the same was challenged by the Centre before the Delhi High Court. The challenge was dismissed by a single bench in March 2020 and the matter is pending before a division bench at present.

Meanwhile, almost echoing the sentiments expressed by the Kerala chief minister, his Odisha counterpart said in his letter that the best way to “protect our people against future waves” of COVID-19 was to centrally procure the vaccines and decentralise the execution of the inoculation drive. He recommended that all states come together to form a consensus on the matter in the “true spirit of cooperative federalism” to save lives and livelihoods.

“No state is safe unless all the states adopt vaccination as the top most priority and execute it on war-footing. But this cannot be a battle among the states to compete against each other to procure vaccines,” Patnaik said in his letter, referring to phase 3 of the Union government’s vaccine policy.

This latest version of the drive allows vaccination of all those above 18 years of age and lets states and private hospitals procure doses. Many states have, since, floated global tenders for supplies.

“However, it is quite clear that the global vaccine manufacturers are looking forward to the Union Government for the clearances and assurances. They are unwilling to get into supply contract with the state governments. While the domestic vaccine manufacturers are having supply constraints and are not able to commit required supplies,” The Odisha Chief Minister said.

“Under the circumstances, the best option available is for the Government of India to centrally procure the vaccines and distribute it among the States. At the same time, the execution of the vaccination programme has to be decentralised and states allowed the flexibility to determine their own mechanisms.”

“Centre must give the vaccines to the states and they must procure the vaccine for the state government. And they must give it free of cost to every state to cover the entire Indian population. On this myself, Naveen Patnaik, Kerala Chief Minister and Arvind, everyone is together,” West Bengal chief minister told the media on Patnaik’s letter.