The Supreme Court on Monday posed tough questions to the Central Government about the rationale of the dual pricing and procurement policy of the COVID vaccines adopted by the Central Government.
The Court asked if it was the policy of the Central Government to let States compete with each other for getting vaccines from private manufactures and let states and even municipal corporations float global tenders for getting foreign vaccines.
A 3-judge bench comprising Justices DY Chandrachud, L Nageswara Rao and S Ravindra Bhat was hearing the suo moto case on COVID issues (In Re Distribution of Essential Services and Supplies During Pandemic) on May 31.
"We are not framing policy. There's an order of 30th April that these are the problems. You will be flexible. You can't just say that you're the Centre and you know what's right. We have a strong arm to come down on this", Justice Chandrachud told the Solicitor General of India, Mr.Tushar Mehta, when the latter said that these are policy issues on which the Court has limited judicial review power.
"We are not changing the policy. We are asking you to please wake up and smell the coffee and see what's happening across the country", Justice Chandrachud said.
"The only thing we want to address is the dual pricing policy. You are asking the States to pick up and compete with each other", Justice S Ravindra Bhat asked the Solicitor General.
The Solicitor General replied that it is factually wrong to say that States are competing with each other for getting vaccines.
"We have some concerns. Now we have a spectacle, where different municipal corporations, different states are issuing global tenders. We want to know, is this the policy of the Government of India that every Municipal corporation, every state is left to their own to get vaccine. Look at the capacity of BMC(Mumbai municipal corporation), it might have a budget comparable with some of our states. Does the Government of India contemplate that for the procurement for foreign vaccines, that there will be individual states or corporations submitting bids or are you going to be a nodal agency for the bids?", Justice Chandrachud observed.
Justice Ravindra Bhat said that the bench wanted to see the files of the Government policy to understand the rationale.
"Till date we have not seen the policy document which articulates this. We want to see the files. We want to know the rationale. To say that centre will procure at a lesser price, and manufacturers are free to fix prices at their own whims.... we want to know the rationale. We want to know the rationale why the pricing of 50% vaccines is left to manufactures. We want to see the files", he said.
Justice Bhat also indicated that there are powers available for the Centre under the Drugs and Cosmetics Control Act to control the prices and sought to know why such powers are not being invoked.
The Solicitor General said that the question of states or municipal corporations issuing tenders might be "academic" as companies such as Pfizer, Moderna etc., have a policy of dealing with only the national governments.
However, Justice Chandrachud countered this by pointing out that the Mumbai Municipal Corporation has received bids for Sputnik.
"There is a vital issue. Article 1 of the Constitution says that India, that is Bharat is a, Union of States. When the Constitution says that, then we follow the federal rule. Then Government of India has to procure the vaccines and distribute it. Individual States cannot be left in a lurch", the judge said.
The Solicitor General said that he was "earnestly urging" the bench not to travel this path of examining the vaccine pricing issue as it might hamper the vaccination program.
"We are only questioning the role of the Centre", Justice Bhat replied.
"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", he continued.
Why different yardstick for 18-44 age group?
The bench also asked about the rationale for giving a different treatment to the age group 18-44 years as regards vaccination, as the Centre is giving free vaccines only to the 45+ age group. In this regard, the bench pointed out that it the 18-44 age group which got badly affected during the second wave of the pandemic.
"For 45+, 50% of what is available is determined pro rata by the Centre. The rest of the 50% is going to be handed over to private hospitals. Our issue is what is the basis for Centre to say that for 45+, we will provide vaccines free of charge, and for rest, it will be procured at a charge. Two concerns are: You have constantly told us that the situation is dynamic. In the second wave, it was the Pre-45 population which also suffered a great deal. Why should the Centre only procure for 45 and leave the ones below on their own ? What is the rationale ? Can we say that 50% of population between 18 to 45 will be able to afford the vaccines ? Not at all", Justice Chandrachud observed.
"How do we look at the marginalised and those who can't provide for themselves ? How do you justify for States such as Goa and Uttarakhand who have to get them all on their own?", the judge asked.
"If this is the rationale, why do the States have to pay a higher price ? You have to ensure that vaccines are available at the same price across the nation. You can't have a different price at the Centre and different at the states", Justice Chandrachud asked.
"Are you willing to state today that the Centre will take the responsibility of ensuring that States will get the vaccine ? That will resolve the entire problem", judge asked.
Questions asked about COWIN registration.
The bench also raised questions at making COWIN registration mandatory for getting vaccine slots.
"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 ?", Justice Chandrachud asked.
"What about the digital divide ? Everyone has to register on COWIN. Is it realistically possible for people in rural areas to start registering on this app ? How do you expect them to do that ? Our own law clerks and friends have tried. Why are we not treating people with comorbidities and those who are marginalised on the same plane ?", the judge raised his concerns.
"Even in the villages, they have to get registered at a common centre. Is that really practical?", the judge further asked.
"This is a real fear amongst the people. I have gotten distress calls from people across the country, that they're not getting slots. They're all gone within seconds", Justice Bhat said.
The bench also heard the submissions of amicus curiae Senior Advocates Jaideep Gupta and Meenakshi Arora on the issues. Senior Advocate Jaideep Gupta informed the bench that several states have filed applications seeking the scrapping of the present vaccine policy. Live Updates from the hearing may be read here.
The bench has adjourned the hearing by two weeks asking the Centre to file an affidavit responding to the concerns expressed by the judges.
The centre also resisted judicial review of the policy by saying "any overzealous, though well-meaning judicial intervention may lead to unforeseen and unintended consequences".