The Supreme Court on Thursday flagged the matter of differential pricing of Covid-19 vaccines and asked the Centre not to leave it to the manufacturers to decide on the cost, reported Live Law.

“Why should we as a nation pay this?” the court asked Solicitor General Tushar Mehra, who was appearing for the Centre. “The price difference becomes Rs 30 to 40,000 crores. There is no point for [a] price difference. We are not directing it but you should look into it.”

A bench of Justices DY Chandrachud, Nageswara Rao and S Ravindra Bhat made the observation on a suo motu hearing on the management of the coronavirus pandemic.

India is reporting coronavirus cases at an alarming rate. This has affected the country’s healthcare infrastructure, which is reeling under the second wave of the pandemic. There is an acute shortage of oxygen, beds and timely medical care across several states.

On Friday, India registered 3,86,452 coronavirus cases, pushing the overall count of infections to 1,87,62,976 since the pandemic first broke out in India in January 2020. This is the highest ever single-day rise in cases reported by any country so far, and the ninth consecutive day when India has recorded more than 3 lakh cases. With 3,498 deaths, the toll climbed to 2,08,330.

To combat the surge, India liberalised its vaccine policy, allowing manufacturers to sell 50% of their vaccine doses to state governments and private hospitals. The manufactures will have to supply the other half to the Centre. While the manufactures – Serum Institute of India and Bharat Biotech – are selling the vaccine to the Centre at Rs 150 per dose, they are charging Rs 300 and 400 to states. While the Serum Institute is charging private hospitals Rs 600 per dose, Bharat Biotech is selling it at Rs 1,200.

“How will they [manufacturers] determine equity?” asked Justice Chandrachud during Friday’s hearing. “Invoke your powers to see that additional facilities are created for vaccine manufacturing.”

The Supreme Court asked the central government why was it not buying all the doses as it was in a better place to determine equity and disburse vaccines.

“Pricing issue is extraordinarily serious,” the court said, reported NDTV. “Fifty percent of doses, which will be available free of charge, will be used for vaccinating frontline workers and those who above 45 years of age. [The] Remaining doses will be used for adults who are 18 and above.”

The bench said that the remaining segment, 59 crore Indians in the 18-45 age group, constitute a large segment. “How will the poor and marginalised people find money to get vaccinated?” the court asked. “We cannot have this private sector model. We must follow [the] national immunisation model which we had followed since independence.”

The court also posed various other questions related to the pandemic to the Centre, asserting that they were not mere “talk” but directions in areas where the court has to intervene. “We are only trying to help the executive so that [the] health of citizens is protected,” said Justice Rao.

It asked what the Centre was doing for states lacking in facilities to deal with the pandemic. “Has the testing labs been directed to track the mutant variant of coronavirus?” it further asked.

The court said that the new variants of the coronavirus were not being detected in RT-PCR tests and asked how it was being regulated.

“How is the Centre trying to regulate the high cost being charged to admit and treat Covid patients,” the bench asked. “Is it left to states to determine the charges?”

The court also asked if the Centre has considered using its powers under Section 92 of the Patents Act for compulsory licensing of coronavirus vaccines. Compulsory licensing is when a government allows someone else to produce a patented product or process without the consent of the patent owner or plans to use the invention itself, according to the World Trade Organization.

Mehta sought time to respond to the questions. “Some of the issues your lordships have cited are new or have policy ramifications,” he said. “It would not be advisable for me to immediately respond.”

During the last hearing on Tuesday, the Supreme Court had said that its suo motu intervention into the management of the coronavirus pandemic was not meant to supplant ongoing cases in various High Courts in the country. The court, however, added that it cannot be a “mute spectator” at the time of a national crisis.

Justice Bhat had raised the matter of differential pricing of vaccines by manufacturers last time too, asking the solicitor general what the Centre was doing about it. “There are powers under the Drugs Controller Act, Section 6 of Patents Act,” the judge had said. “This is a pandemic and a national crisis. If this is not the time to issue such powers, what is the time?”

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