A Supreme Court Bench comprising Justices DY Chandrachud, L Nageswara Rao and Ravindra S Bhat heard the suo moto case related to the COVID-19 pandemic and related aspects on Monday, 31st May. The Court questioned the Centre on the vaccination drive, the logic behind the dual pricing of the vaccines and the procurement policy of the COVID-19 vaccines by the Centre. The Court asked whether it was a policy of the Central Government to let the States compete with each other to procure vaccines from private manufacturers and let States and Municipal Corporations float global tenders for getting foreign vaccines.
When the Solicitor General of India, Tushar Mehta claimed that these were policy issues on which the Court had limited review powers, Justice DY Chandrachud told him that the government just couldn’t say that they were the Centre and knew what is right. He clarified that the Court had a strong arm to come down on the matter. Justice Chandrachud categorically stated that the Court wasn’t asking them to change the policy, rather was asking the government to wake up and smell the coffee and see what is happening across the country. Justice Bhat told the Solicitor General that the Court was only addressing the issue of the dual pricing policy.
SG Mehta replied that it was factually wrong to say that the States were competing with each other for getting the vaccines. Justice Chandrachud asked whether it was a policy of the Centre to let the States and Municipal Corporations be on their own to procure vaccines. Citing the capacity of the BMC, he highlighted how it could be having a budget more than some of the States. It was also asked whether the States or Municipal Corporations were to submit individual bids to procure foreign vaccines or the Centre would be the nodal agency for the bids. Justice Bhat added, the Bench wanted to see the files of the Government policy to understand the rationale.
Citing the Drugs and Cosmetics Control Act, Justice Bhat sought to know why the powers under the act were not being invoked to control the prices of the vaccines. Justice Chandrachud pointed out how the Mumbai Municipal Corporation had received bids for Sputnik V. It was observed that as India is a federal country, it was the responsibility of the Centre to procure vaccines and distribute them among the States. Replying, SG Mehta urged the Bench not to venture into the pricing issue as it might hamper the vaccination drive. To which Justice Bhat said, “We are only questioning the role of the Centre. We just want the rationale of the dual policy. What is the rationale? If there is enough, then we will leave it. We will not hamper you in the negotiation. I don’t know where you got this from.”
The Bench also asked about the rationale behind the different pricing policy introduced by the Centre for different age groups as the Central Government was providing free vaccines to only the 45+ age category and not to those belonging to the category of 18-45 years of age. It was pointed out that it was this age category that was severely affected by the second wave of the pandemic. Justice Chandrachud asked whether 50% of the people from the 18-45 age category would even be able to afford the vaccines. He observed that to do away with this difference, a uniform policy for procurement and distribution needed to be worked on.
The next set of questions that were posed to the Centre was related to the registration on the COWIN app to get slots booked to get the jab. Justice Chandrachud said, “You keep saying digital India, digital India but you are not aware of the ground realities. A poor worker from Jharkhand has to go all the way to a common centre? You can certainly have registration but how will you answer the digital divide? How do you answer the question about migrant labourers who have to go from one State to another?” He continued by asking how it was realistically possible for people from rural backgrounds to start registering on the app; and why people with comorbidities and marginalized individuals were not being treated on the same plane.
Justice Ravindra Bhat highlighted the fear rampant among the people and how he was receiving frantic calls from people across the country because they were not getting slots as they filled up within seconds. SG Mehta replied stating that the Centre had made certain relaxations and permitted walk-in registrations and workplace vaccinations for certain categories. Mehta said that he would place all the details in an affidavit. He added that the policy of the government was not “cast in stone” and could be modified as per the dynamic situation.
Apart from the pointers mentioned above, the Centre told the Court that it was expecting to vaccinate the entire eligible population by the end of 2021. SG Mehta said, “On the question of vaccination, there is a good development. Broadly I may indicate, as per our estimate, we expect the entire eligible population to get vaccinated by the end of this year.” He told the Bench how the Centre was engaged in diplomatic and political talks with foreign vaccine companies like Pfizer and Moderna; and that the government was positive about getting those vaccines soon. The SG informed the Bench that the National Task Force on Oxygen, which was constituted by the Supreme Court on May 6th, had held several meetings and had prepared a draft report, which would be presented before the Court after finalization.
Asking the Centre to file an affidavit responding to the concerns which were raised during the hearing, the Bench adjourned the matter by two weeks.
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