The Supreme Court on Wednesday said that the Centre’s policy to provide free vaccination for priority groups and replacing it with a paid process for those in the 18-45 age group was “prima facie arbitrary and irrational”.

A three-judge bench of Justices DY Chandrachud, L Nageswara Rao and S Ravindra Bhat made the observation in an order passed on the suo motu plea it was hearing on the handling of the coronavirus pandemic in the country.

The court noted that unlike in the first and second phases of vaccination, the inoculation process for those in the 18-45 age group did not prioritise beneficiaries with co-morbidities and other diseases, persons with disabilities, or any other vulnerable groups.

“Due to the changing nature of the pandemic, we are now faced with a situation where the 18-44 age group also needs to be vaccinated, although priority may be retained between different age groups on a scientific basis,” the court said in its order.

Court asks for details of vaccine procurement

The top court asked the Centre to furnish complete data on the government’s purchase history of all Covid-19 vaccines till date. The order asked the government to submit an affidavit within two weeks detailing the dates of orders for vaccine placed by the government, quantity of the vaccines ordered on each date, and the projected date of supply.

The court also ordered the government to provide data on the percentage of the population that has been vaccinated with one or both doses, as against eligible persons in the first three phases of the vaccination drive. The data should include percentage of rural population as well as the percentage of urban population so far vaccinated, the court said.

On differential pricing

The court also raised questions on the Centre’s “liberalised vaccine policy” for the third phase of inoculation. The policy, announced in April, allows the Centre to procure half of the doses supplied by vaccine manufacturers at a lower price than state governments and private hospitals, who have to buy the shots from the remaining stock.

In its affidavit to the court, the Centre had said that this policy was adopted to encourage competition among private manufacturers that could bring the prices down. The court, however, held that the Centre had “pre-fixed” the price and supply of doses with two available manufacturers, Bharat Biotech and Serum Institute of India, and so there was no room for negotiation.

The court refused to accept the Centre’s argument that keeping vaccine prices low for its own quota would enable the Union government to place large orders. It asked why this rationale could not be employed for the entire quota of doses.

The bench also directed the Centre to clarify how the Rs 35,000 crore allocated in Union Budget for procuring vaccines was being used, and why it cannot be utilised for shots for those in the 18-45 age group.

On equitable distribution of vaccines

The court picked holes in the new vaccine policy, which it said effectively results in expecting half of those in the 18-45 age group to pay for their vaccines at private hospitals.

“However, the present system of allowing only digital registration and booking of appointment on CoWIN [platform], coupled with the current scarcity of vaccines, will ultimately ensure that initially all vaccines, whether free or paid, are first availed by the economically privileged sections of the society,” the court noted.

The court, thus, ordered the Centre to clarify how it plans to monitor disbursal of vaccines to private hospitals and ensure an equitable distribution of vaccines.

The order also cited various reports on access to Internet in India and flagged a “digital divide” between the rural and urban areas. The court said that due to this and a “vaccination policy exclusively relying on a digital portal”, the target of universal immunisation would be difficult to meet.

On basis of pricing

In its affidavit to the court, the Centre had said that it had provided funds worth Rs 35 crore to Covaxin manufacturer, Bharat Biotech, for the purpose of research and development and covering intellectual property costs. It said it had also transferred Rs 11 crore to Serum Institute of India for conducting third phase trials of the Covishield vaccine.

Taking note of these submissions, the court asked the Centre to clarify why it had intervened “in pre-fixing procurement prices and quantities” of doses for states and Union Territories, and why it had not imposed statutory price ceilings. The court also asked for details on the manner in which the pricing of vaccines was arrived at.