Breaking: Centre's Decision To Allow Early Administration Of COVISHIELD Vaccine Before 84 Days To Some Classes Of People Discriminatory

The Kerala High Court allowed the petition filed by two companies seeking to administer the second dose of COVISHIELD vaccine to its workers before completion of the 84 day-gap.

"The decision of the Government in providing relaxation in the protocol regarding administration of second dose of vaccine to certain classes of persons alone amounts to discrimination". 

Justice P.B. Suresh Kumar directed the Department of Health and Family Welfare to make necessary provisions forthwith in the CoWIN portal, so as to enable scheduling of 2nd dose of the Covishield vaccine after 4 weeks of the first dose.

"If the Government can permit persons who are intending to travel abroad to exercise a choice between early protection and better protection from Covid-19 infection, there is absolutely no reason why the same privilege shall not be extended to others who want early protection in connection with their employment, education, etc".

The question that was posed for consideration before the Court was whether a person covered by the National COVID Vaccination Program is entitled to make a choice between early protection and better protection from Covid–19 infection in the matter of accepting paid vaccine.

The petitioner companies had taken upon themselves the task of vaccinating their workers and their close family members with the first dose without waiting for the Government to do so to protect them from the virus.

However, they were restricted from administering the second dose in a similar way due to the mandatory 84 days interval prescribed between the two doses.

Upon perusal of the submissions and documents on record, it was further observed as such: 

"There is absolutely no reason why the State should take the stand that they shall not be permitted to accept the second dose, if they choose to do so after four weeks in terms of the original protocol of the vaccine for their early protection, especially when they themselves are procuring the vaccine by spending money from their pockets."

 Advocate Blaze K Jose appearing for the petitioner had argued that initially when the vaccination program of the Central Government began, the protocol of the said vaccine was that the second dose shall be administered only after 4 weeks, but within 6 weeks.

Later, the said protocol was revised successively and the existing protocol is that the second dose shall be administered only after 12 weeks but within 16 weeks.  

He submitted that this restriction was being enforced by the Centre by insisting registration for the administration of the vaccine in the portal, CoWIN. 

They further based their arguments on the fact that the State had relaxed the interval between the two doses of Covishield for certain classes of persons and accordingly, requested the Centre to make appropriate changes in the portal to enable their registration for the second dose of the vaccine before 12 weeks.

The counter-affidavit submitted by the respondent also admitted that the Government had relaxed the 84 days interval for certain beneficiaries.

"...when the State and Central Governments have relaxed the interval between the two doses of the vaccine for various classes of persons who intend to go abroad, giving preference to their need over the quality of protection from the pandemic, there is absolutely no reason why the same privilege shall not be extended to people residing in India for their early protection from the pandemic." 

On this premise, the petitioners had forwarded a representation seeking permission to administer the second dose similarly to its workers, which was allegedly not considered by the State. 

The Court had earlier inquired if this gap was necessary and if it was related to the efficacy of the vaccine, or if it was extended due to the non-availability of the vaccines in the country.

To this, the respondent had replied that the prescribed 84 days between two doses of Covishield vaccine was based on a technical opinion recommended by the National Expert Group on Vaccine Administration for COVID-19 (NEGVAC) for better protection from the Covid-19 virus.

While the Counsel for the petitioner admitted that a 12-week gap would prove to be more efficient, his argument was that people should necessarily have the right to make a choice as to the time interval within which they should accept the second dose of the vaccine.

This was supported by another strong argument put forth by the petitioner that the vaccine was procured by the petitioners, and not provided free of cost by the Government.

The petitioner had also implied that the delay in administering the second dose could be contributing to the uncontrollable spike in Covid positive cases in the State.

Considering the prevailing situation, the petitioner had urged that the need of the hour is not better protection or best protection, but early protection from infection. 

However, the respondents vehemently opposed all the averments of the petitioner on the single argument that the decision to prescribe an interval of 12 weeks was arrived at after considering substantial scientific evidence and expert opinion to ensure the best protection for the whole population.

They also hinted that even if the petitioners do have a right to choose between best protection and early protection, the said right cannot be exercised, if the exercise of the said right by the petitioners would affect the right of the general public to secure maximum protection against Covid-19. 

The Court noted that in the statement filed by the Centre, it was admitted that the immunity provided by the second dose of Covishield vaccine with a time interval of less than 12-16 weeks would be better than partial vaccination, namely single dose. 

The Court noted that vaccination was made voluntary and not mandatory in the country considering one's right of bodily autonomy. 

"The principle that every human being of adult years and sound mind has a right to determine what shall be done with his/her body, though not of Indian origin, has been widely accepted by the courts in India. It is in recognition of the said principle that the vaccination for Covid-19 is made voluntary" 

In that context, the Bench observed that the requirement to administer two doses of the vaccine and the interval between the two doses for better protection from infection can only be considered as advisory. 

"...when the people have even the right to refuse to accept vaccine, there is absolutely no reason why the State should take the stand that they shall not be permitted to accept the second dose, if they choose to do so after four weeks in terms of the original protocol of the vaccine for their early protection, especially when they themselves are procuring the vaccine by spending money from their pockets."

It was further observed by the Court that if the Government can permit persons intending to travel abroad to exercise a choice between early protection and better protection from Covid- 19 infection, there is absolutely no reason why the same privilege shall not be extended to others who want early protection in connection with their employment, education, etc. 

Accordingly, the petition was allowed. 

However, the Court clarified that it had not considered the question of whether a person is entitled to make a choice between early protection and better protection from Covid–19 infection in the matter of accepting the free vaccine provided by the Government.

Case Title: Kitex Garments Ltd. v. State of Kerala 

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