"Current COVID vaccine policy will create disparity; Bahujans, marginalised groups may not have ability to pay:" Supreme Court

The Supreme Court asked the Central government to revisit the present vaccination policy for COVID-19 adopted by the Central government stating that the present policy would prima facie result in a detriment to the right to public health which is an integral element of Article 21 of the Constitution.

The Court said that the present policy would compel the State governments to negotiate with manufacturers on the ground of promoting competition and making it attractive for new vaccine manufactures which will result in a serious detriment to those in the age group of 18 to 44 years, who will be vaccinated by the State Governments.

"The social strata of this age group also comprises persons who are Bahujans or belong to other under privileged and marginalized groups, like many in the other population age groups. They may not have the ability to pay," the Court said.

Whether or not essential vaccines will be made available to them will depend upon the decision of each State Government, based on its own finances, on whether or not the vaccine should be made available free or should be subsidized and if so, to what extent.

This will create disparity across nation, the Court said.

It further stated that vaccinations being provided to citizens constitute a valuable public good.

Therefore, discrimination cannot be made between different classes of citizens who are similarly circumstanced on the ground that while the Central government will carry the burden of providing free vaccines for the 45 years and above population, the State Governments will discharge the responsibility of the 18 to 44 age group on such commercial terms as they may negotiate, the Court emphasised.

The Court went on to suggest that the rational method of proceeding in a manner consistent with the right to life (which includes the right to health) under Article 21 would be for the Central Government to procure all vaccines and to negotiate the price with vaccine manufacturers.

"Once quantities are allocated by it to each State Government, the latter would lift the allocated quantities and carry out the distribution. In other words, while procurement would be centralized, distribution of the vaccines across India within the States/UTs would be decentralized," the Court suggested.

The Court, however, made it clear that it is not passing any order on the Constitutionality of the policy.

"While we are not passing a conclusive determination on the constitutionality of the current policy, the manner in which the current policy has been framed would prima facie result in a detriment to the right to public health which is an integral element of Article 21 of the Constitution. Therefore, we believe that the Central Government should consider revisiting its current vaccine policy to ensure that it withstands the scrutiny of Articles 14 and Article 21 of the Constitution," the order said.

[Read Order]