The Supreme Court has questioned the Union government for making vaccination for the 18-44 age group paid at a time when the importance of vaccinating this particular age group has emerged. The court, in its May 31 order which was uploaded on June 1, said that it was “arbitrary and irrational” that the Union government, which had held free vaccination for groups under the first two phases, replaced the same with paid vaccination by the state or UT governments and private hospitals. The Supreme Court bench of Justices Dhananjaya Y Chandrachud, L Nageswara Rao and S Ravindra Bhat pulled up the Union government over its handling of the COVID-19 situation in India and asked it to place on record all relevant documents and file notings reflecting its thinking culminating in the COVID-19 vaccination policy.
“The UoI has claimed that it will be able to vaccinate a substantial number of persons (around 100 crore persons requiring 200 crore doses) by December 2021. However, no projections have been shared with this Court regarding how this target would be achieved,” the court said. “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 bench added.
The court has also asked the government for an outline for how and when it seeks to vaccinate the remaining population in Phases 1, 2 and 3. The court has also asked what steps are being taken by the Central Government to ensure drug availability for mucormycosis (black fungus). The apex court has asked the government to file its affidavit within two weeks.
In the order, the court has also asked the Union government to include the purchase history till date of all COVID-19 vaccine doses including Covaxin, Covishield and Sputnik V. “The complete data on the Central Government's purchase history of all the COVID-19 vaccines till date (Covaxin, Covishield and Sputnik V). 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, the bench said.
“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,” the court said.
The court also observed that the CoWIN portal, where vaccination slots can be booked, is not accessible to persons with visual disabilities. The website suffers from certain accessibility barriers which should be addressed, the court said. The court also pointed out that the Union Budget for the financial year 2021-2022 had earmarked Rs 35000 crore for procuring vaccines and asked the Union Government to clarify how these funds have been spent so far and why they cannot be utilized for vaccinating persons aged 18-44 years.
Seeking to clarify why it took a suo motu cognisance of the COVID-19 situation, the court said, "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."
“In grappling with the second wave of the pandemic, this Court does not intend to second-guess the wisdom of the executive when it chooses between two competing and efficacious policy measures. However, it continues to exercise jurisdiction to determine if the chosen policy measures conform to the standards of reasonableness, militates against manifest arbitrariness and protects the right to life of all persons.” added the court.
On May 31 too, while hearing the case, the top court had highlighted the digital divide between rural and urban India and posed searching queries to the Union government on mandatory registration on CoWIN for COVID-19 jabs, vaccine procurement policy and differential pricing, saying the policymakers must have ears on the ground to effectively deal with the unprecedented crisis.
Asking the Union government to "wake up and smell the coffee" and ensure that COVID-19 vaccines are available at the same price across the nation, the top court had advised the government to be flexible with its policies to deal with the dynamic pandemic situation. The top court's order came in a suo motu case on COVID-19 management.