2021 Supreme(SC) 282

SUPREME COURT OF INDIA
Dhananjaya Y. Chandrachud, L Nageswara Rao, S. Ravindra Bhat, JJ.
IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC
Suo Motu Writ Petition (Civil) No. 3 of 2021
Decided on : 31-05-2021

IMPORTANT POINTS
(1) Corona Pandemic – Issue of vaccination is absolutely crucial, since health experts globally agree that vaccination of nation’s entire eligible population is singular most important task in effectively combating COVID-19 pandemic in long run.
(2) Policy-making continues to be in sole domain of executive. Judiciary does not possess authority or competence to assume role of executive, which is democratically accountable for its actions and has access to resources which are instrumental to policy formulation. However, this separation of powers does not result in courts lacking jurisdiction in conducting a judicial review of these policies.
(3) Corona Pandemic – Vaccination Policy – There exists a digital divide in India, particularly between rural and urban areas. Extent of advances made in improving digital literacy and digital access falls short of penetrating majority of population in country.
(4) Corona Pandemic – Private health care institutions have an important role as well.

Headnote:

(A) Corona Pandemic – Management of COVID-19 Pandemic during second wave – Vaccination policy and its roadmap for future – Issue of vaccination is absolutely crucial, since health experts globally agree that vaccination of nation’s entire eligible population is singular most important task in effectively combating COVID-19 pandemic in long run – Vaccine manufacturers are required to supply 50% of their monthly Central Drugs Laboratory15 doses to Union of India and would be free to supply remaining 50% doses to State/UT Governments and in other than Government of India channel Manufacturers were required to make a declaration of price of the 50% supply that would be available to State/UT Governments and in other than Government of India channel before 1st May 2021 – Based on this price, States/UTs, private hospitals and industrial establishments through their hospitals may procure vaccines from manufacturers – Private hospitals would be able to procure their supplies only from 50% supply earmarked for other than Government of India channel – Prices charged for vaccination by private hospitals would be monitored – As a result, earlier dispensation where private COVID-19 vaccination centres which received doses from Union of India could charge up to Rs 250 per dose ceased to exist – Population which is now eligible to obtain vaccines at Union of India’s vaccination centres is limited to HCWs, FLWs and those above 45 years of age – Population between 18-44 years is eligible to obtain vaccines from other than Government of India channel – Vaccination would continue to be available for free for eligible population groups in those vaccination centres which receive their vaccine doses from Union of India – Vaccination would continue to be a part of National Vaccination Programme and would follow all existing guidelines – CoWIN platform would capture vaccination, stocks and price per vaccination applicable in all vaccination centres – Vaccination drive would comply with Adverse Event Following Immunization management and reporting, digital vaccination certificate and all other prescribed norms. (Para 11)

(B) Corona Pandemic – Management of COVID-19 Pandemic during second wave – Separation of Powers – Nature of Apex Court’s jurisdiction in exercise of power of judicial review over management of COVID-19 Pandemic in India – Separation of powers is a part of basic structure of Constitution – Policy-making continues to be in sole domain of executive – Judiciary does not possess authority or competence to assume role of executive, which is democratically accountable for its actions and has access to resources which are instrumental to policy formulation – However, this separation of powers does not result in courts lacking jurisdiction in conducting a judicial review of these policies – Our Constitution does not envisage courts to be silent spectators when constitutional rights of citizens are infringed by executive policies – Judicial review and soliciting constitutional justification for policies formulated by executive is an essential function which courts are entrusted to perform – Context of public health emergency with which country is currently grappling, this Court appreciates dynamic nature of measures – Across the globe, executive has been given a wider margin in enacting measures which ordinarily may have violated liberty of individuals, but are now incumbent to curb pandemic – Historically, judiciary has also recognized that constitutional scrutiny is transformed during such public health emergencies, where executive functions in rapid consultation with scientists and other experts – In grappling with second wave of pandemic, this Court does not intend to second-guess wisdom of executive when it chooses between two competing and efficacious policy measures – However, it continues to exercise jurisdiction to determine if chosen policy measure conforms to standards of reasonableness, militates against manifest arbitrariness and protects right to life of all persons – This Court is presently assuming a dialogic jurisdiction where various stakeholders are provided a forum to raise constitutional grievances with respect to management of pandemic – This Court would, under auspices of an open court judicial process, conduct deliberations with executive where justifications for existing policies would be elicited and evaluated to assess whether they survive constitutional scrutiny. (Paras 14, 15 and 17)

(C) Corona Pandemic – Second Wave – Vaccine Procurement and Distribution among Different Categories of the Population – Unlike prior policy, Liberalized Vaccination Policy does not prioritize persons with co-morbidities and other diseases, persons with disabilities, or any other vulnerable groups – This is especially at issue because experience of second wave of pandemic has provided an experiential learning that COVID-19 virus is capable of mutation and now poses a threat to persons in this age group as well. Reports indicate that persons between 18-44 years of age have not only been infected by COVID-19, but have also suffered from severe effects of infection, including prolonged hospitalization and, in unfortunate cases, death – Due to importance of vaccinating individuals in 18-44 age group, policy of Central Government for conducting free vaccination themselves for groups under first 2 phases, and replacing it with paid vaccination by State/UT Governments and private hospitals for persons between 18-44 years is, prima facie, arbitrary and irrational – Liberalized Vaccination Policy seeks to remove issue of bargaining disparities by stating that each State/UT would have a prefixed pro rata quota based on their population in 18-44 age group, 50% of which will be available to State/UT Governments and 50% to the private hospitals – Central Government is in active negotiations with various private foreign manufacturers to augment availability of vaccines in near future – Private health care institutions have an important role as well. (Paras 20, 22, 23 and 28)

(D) Corona Pandemic – Vaccination Policy – Digital Divide – There exists a digital divide in India, particularly between rural and urban areas – Extent of advances made in improving digital literacy and digital access falls short of penetrating majority of population in country – Serious issues of availability of bandwidth and connectivity pose further challenges to digital penetration – A vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide – It is marginalized sections of society who would bear brunt of this accessibility barrier – This could have serious implications on fundamental right to equality and right to health of persons within above age group – Directions issued. (Paras 39, 40 and 41)

Facts of the case:

Proceedings in the present suo motu writ petition were initiated on 22nd April 2021, when this Court took cognizance of the management of the COVID-19 pandemic during the second wave. Subsequently, hearings were conducted on 23rd April 2021, 27th April 2021 and 30th April 2021 when submissions were heard on behalf of Union of India, States/Union Territories, Amici appointed by this Court and some of the intervenors. On 30th April 2021, this Court passed a detailed order in relation, inter alia, to the following issues: vaccination policy, supply of essential drugs, supply of medical oxygen, medical infrastructure, augmentation of healthcare workforce and the issues faced by them, and issues of freedom of speech and expression during COVID-19 pandemic. In its order, this Court had noted that its observations and directions were in consonance with a bounded-deliberative approach and hence, Union of India was directed to re-consider its policies on the above issues, taking into account this Court’s observations.

Findings of Court:

As a consequence of Liberalized Vaccination Policy, responsibility for vaccination in phase 3 is being divided between the Central Government (for those above 45 years of age, HCWs and FLWs) and the State/UT Government along with the private hospitals (for the age group of 18-44 years). This would mean that the limited vaccine logistics available in a State/UT would have to be shared between the State/UT Government and the Central Government. This is different from the situation under the UIP, where the Central Government buys and allocates vaccines to States/UTs, in order to ensure that their cold storage facilities are not overwhelmed.

Result : Directions issued.