Rational & Equitable? Experts Analyze Centre's Affidavit Which Defends COVID Vaccination Policy

The Central Government has filed an affidavit in the Supreme Court saying that its vaccination policy was formulated based on widespread consultations with experts, state governments and vaccine manufacturers.The affidavit was filed in response to the prima facie observations made by the Supreme Court in its April 30 order that the Centre's vaccine policy was detrimental to right to health and that the same should be revisited to conform with the mandate of Articles 14 and 21 of the Constitution.The top court had questioned the rationale behind the differential pricing of vaccines for Centre, State Governments and private hospitals. A bench comprising Justices DY Chandrachud, L Nageswara Rao and S Ravindra Bhat had opined that it will be better if Centre procures the vaccines for all states, instead of asking the states to procure them from open market, competing with private players. The Court had also suggested that the Government should invoke powers under the Patents Act, such as compulsory licensing, to make COVID vaccines and drugs more affordable and accessible amid a public health emergency. In response to the Court's observations and queries, the Centre has said that the distribution of the vaccine amongst the States is based on " equitable and rational criteria" and that it has persuaded the manufacturers to fix a uniform rate for states to avoid regional disparities. The Centre also said that allowing private entities to sell vaccines will ease the operational stress of government facilities providing free vaccination. Taking a stand against waiver of IP rights of COVID drugs and medicines, the Centre went to the extent of saying that any such discussions at this stage will be counter-productive.Seeking to prevent judicial review over the policy, the Centre has told the Court that "any overzealous, though well-meaning judicial intervention may lead to unforeseen and unintended consequences".LiveLaw reached out to certain experts for their analysis of Centre's stand.'Not rational and equitable'Professor R Ramakumar, Centre for Study of Developing Economies of Tata Institute of Social Sciences, said that the affidavit has brought to light a lesser known aspect of the Centre's vaccine policy - that it has capped the state's quota as 25%. He pointed out that in the affidavit, the Centre reveals that the states can only procure the half of the open market pool of the vaccines, which means 25% of the vaccine production. The ratio of allocation thus means 50% for centre, 25% for states and 25% for private hospitals. The affidavit states that: "Out of the 50% quota allotted to each state, the division is made on 50%/50% basis. In other words, from out of the 50% allotted to the state, 50% will go to the State…and the balance 50% will go to the private sector based upon the contracts between private sector and vaccine manufacturers."Capping the quota of the states, which have the same constitutional obligation as the Centre to protect the health of citizens, and putting them on the same pedestal as private hospitals which operate with profit motive, does not reflect a rational or equitable policy, said Professor Ramakumar. This will force more people to pay for vaccines, which will undermine the aim of universal vaccination.According to him, certain statements made in the affidavit are strong indicators that the policy has been devised in such a manner to ensure profit maximization for private players. The centre says that the policy "..aims at liberalised vaccine pricing and scaling up of vaccine coverage to incentivise vaccine manufacturers to rapidly scale up their production and to attract new vaccine manufacturers… Herein, differential pricing is based on the concept of creating an incentivised demand for the private vaccine manufacturers in order to instil a competitive market resulting in higher production of vaccines and market-driven affordable prices for the same"(emphasis supplied).The affidavit also says that the price factor will not affect the ultimate beneficiary as all state governments have announced free of cost vaccinations. Thus, the burden of providing free vaccination has been passed on to states, which have to procure vaccines from manufacturers at a higher rate than the Centre. While vaccines are given to Centre at Rs 150 per dose, for states it is Rs 300 per dose for COVISHIELD and Rs 400 per dose for COVAXIN. "How is this rational and equitable?", Professor Ramakumar asks.Free-market pricing will not increase supply of vaccinesMumbai-based advocate Murali Neelakantan, who has been actively writing and commenting about the vaccination policy in leading dailies and public platforms, said that the justification given for the differential pricing is contrary to the Vaccine Policy, 2011 which clearly states that central procurement, multiple vendors and one price is the best procurement strategy. WHO and all its supported projects and every other country has now adopted ...

Rational & Equitable? Experts Analyze Centre's Affidavit Which Defends COVID Vaccination Policy

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