The Supreme Court on Tuesday ordered the Central government to clarify the basis and rationale on which COVID-19 vaccines are being priced in the country.
A Bench of Justices DR Chandrachud and Justices L Nageswara Rao and Ravindra Bhat noted that different vaccine manufacturers were quoting different prices for their vaccines at a time when the country is passing through national crisis.
It, therefore, orally urged the Central government to examine the necessity of invoking provisions under the Patent Act to regulate prices of COVID vaccines if necessary.
“Regarding pricing on vaccination different manufacturers are quoting different prices. There are powers under Patents act. This is a pandemic and a national crisis,” Justice Bhat remarked.
In its order, the Court asked the Centre to clarify the grounds on which pricing has been done while also asking the government for details on modalities put in place to meet vaccine shortage when vaccination is opened to up to all above 18 years of age.
“Union shall clarify the projected requirements of vaccine due to enhancement of coverage. Modality to be put in place to ensure that shortage and deficit would be looked into. Centre to clarify basis and rationale for pricing of vaccine,” the Court ordered.
The Bench on Tuesday also reiterated that it will not stop High Courts from exercising their jurisdiction to look into COVID related issues.
However, it emphasised that the Supreme Court cannot remain a mute spectator at the time of a national crisis.
“High court are in a better position to look into this. Supreme Court has to intervene too because there may be national or systemic issues. At time of national crisis, Supreme Court cannot be mute spectator,” said Justice Chandrachud.
The Court was hearing a suo motu cases registered in the wake of the COVID crisis in the country. The case had invited lot of criticism from senior members of the Bar who alleged that it was an attempt to usurp the jurisdiction of High Courts, many of which were already looking into the issue and giving stern directions to Central and State governments.
“We are not preventing the HC from exercising their power under 226 we intend to play a complimentary role and help in issues they are not able to look into,” Justice Chandrachud underscored on Tuesday.
The Central government through Solicitor General Tushar Mehta also maintained that the government will not oppose any High Court on the aspect of jurisdiction.
“We are not questioning anyone jurisdiction. You have to examine steps taken by us. There are certain issues of perception. This from early 2020 and how nobody anticipated second wave,” Mehta submitted.
Mehta also said that country should be proud that the Prime Minister is examining the issue and all political parties are coordinating and working across party lines.
“We should all be proud that this issue is being looked into by the Prime Minister and all political parties are coordinating across party lines. Jurisdiction of High Court or Supreme Court is not in question. We are only laying down steps taken on war footing,” he said.
The Bench asked the Central government whether or not resources of para-military and defence forces can be pressed into service to tackle the second wave of the pandemic.
“We need to know about use in central resources of para military forces who have para medics and army facilities and army doctors and railways, these are common facilities which can be made available for quarantine, vaccination or beds,” Justice Ravindra Bhat said.
The Bench took on record the affidavit filed by the Centre pursuant to the previous order.
It then proceeded to issue the following directions to the Central government:
– Central government should apprise the Court on the total availability of the oxygen. The government should show the projected demand of oxygen now and future, steps taken to ensure augmentation of the same, the monitoring mechanism to ensure supply to affected states, share from the central pool for states, methodology for same etc.
– Steps to be shown which are taken to ensure supply of drugs such as Remdisivir and others;
– COVISHIELD and COVAXIN is made available, as on date vaccination is for 45 years and above and from May 1 vaccination to be opened to all ages who are above 18. Union shall clarify the projected requirements of vaccine due to enhancement of coverage;
– Modality to be put in place to ensure that shortage and deficit would be looked into. Centre to clarify basis and rationale for pricing of vaccine;
– Comprehensive panel of doctors should be made available for citizen to know steps to be taken during the pandemic. Centre to apprise us steps taken to form an identified panel of specialists which will be replicated at all state levels
Since Senior Counsel Harish Salve has recused as Amicus Curiae from the case last week, the Court proceeded to appoint Senior Advocates Jaideep Gupta and Meenakshi Arora as Amicus Curiae in the matter.
The matter was adjourned for further hearing after two days.
The Court further stated that the matter will be heard on day-to-day basis thereafter.
The Court had taken suo motu cognizance of the matter on Thursday last week, after noting that the fact that six High Courts were dealing with issues arising out of COVID-19 management was creating confusion and delay.
“High Courts have passed certain orders which may have the effect of accelerating and prioritising the services to a certain set of people and slowing down the availability of these resources to certain other groups whether the groups are local, regional or otherwise,” the order passed on Thursday had said.
The Supreme Court in its April 22 order had noted that “certain amount of panic has been generated and people have invoked the jurisdiction of several High Courts in the country seeking various reliefs such as Delhi, Bombay, Sikkim, Madhya Pradesh, Calcutta, Allahabad and Gujarat.”
It, therefore, said that it will issue notice on four issues:
– Supply of oxygen;
– Supply of essential drugs;
– Method and manner of vaccination and
– Power to declare lockdown.
Apart from the four issues mentioned, the Court also asked the Central government to place before it a national plan for dealing with issues arising out of the pandemic.
The move by the Supreme Court to take suo motu cognizance had come under heavy criticism from senior lawyers and Bar associations of High Courts and the Supreme Court.
The High Courts of Delhi, Bombay and Allahabad have been making strong observations about the failure of government machinery in handling the COVID-19 crisis.
The Supreme Court stepping in was widely seen as a move to inject High Courts from exercising their powers.