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COURT MADE IT FREE – IMPACT OF JUDICIAL REVIEW

ROLE OF SUPREME COURT – FREE VACCINE – IMPACT OF JUDICIAL REVIEW / LEGAL LOCK

LATEST RULING: JUDICIAL REVIEW

In order to thoroughly examine the COVID vaccination policy, the Supreme Court also ordered the Centre to provide information on how the Rs 35,000 crore set aside for vaccines has been spent so far, as well as to record all relevant documents and file notations reflecting its thinking that led to the policy.

The Supreme Court on Wednesday lambasted the Centre’s COVID vaccination policy, stating it is “prima facie arbitrary and unreasonable,” and ordered its revision, observing that courts cannot be “silent bystanders” when individuals’ fundamental rights are violated by administrative policies.

In order to thoroughly examine the COVID vaccination policy, the Supreme Court also ordered the Centre to provide information on how the Rs 35,000 crore set aside for vaccines has been spent so far, as well as to file all relevant documents and file notations reflecting its thinking that led to the policy.

In light of the huge digital divide between rural and urban India, it was critical of the Centre’s decisions on liberalised vaccination policy, differential pricing of vaccines for the Centre, states, and private hospitals, the basis of such a norm, and mandatory registration on CoWIN App for booking slots for jabs, and sought a response from the government on its queries in two weeks.

In a stinging response to the Centre’s submissions in an affidavit that the judiciary should not enter the policy-making domain, the bench said in its order that the Constitution does not envision courts being silent spectators when constitutional rights of citizens are infringed by executive policies.

The Union Budget for the Financial Year 2021-2022 included a provision of Rs 35,000 crore for vaccine procurement. In view of the Liberalized Vaccination Policy, a special bench of Justices D Y Chandrachud, L Nageswara Rao, and S Ravindra Bhat has asked the Central Government to explain how these monies have been spent so far and why they cannot be used to vaccinate those aged 18 to 44.

We urge the Union of India (UoI) to conduct a fresh evaluation of its vaccination strategy, taking into account the concerns stated, according to the ruling, which is part of a series of judicial judgements on the country’s COVID-19 administration.

Finding fault with the vaccination policy, it said unlike the previous one, it did not prioritise persons with comorbidities and this became important in view of the fact that in the second wave, persons between 18-44 years of age have suffered severe effects of infection including deaths in unfortunate cases. 

“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.

“Hence, due to the importance of vaccinating individuals in the 18-44 age group, the policy of the Central Government for conducting free vaccination themselves for groups under the first 2 phases, and replacing it with paid vaccination by the State/UT Governments and private hospitals for the persons between 18-44 years is, prima facie, arbitrary and irrational,” Justice Chandrachud said in the 32-page order.

VACCINATION AND COURT

The court asked the Centre to provide the data on the percentage of population that has been vaccinated (with one dose and both doses), as against eligible persons in the first three phases of the vaccination drive.

“This shall include data pertaining to the percentage of rural population as well as the percentage of urban population so vaccinated,” it said asking the Centre to furnish each and every detail sought.

The bench also sought “complete data” of the Centre’s purchase history of all the COVID-19 vaccines — Covaxin, Covishield and Sputnik V — till date.

“The data should clarify:

(a) the dates of all procurement orders placed by the Central Government for all 3 vaccines;

(b) the quantity of vaccines ordered as on each date; and

(c) the projected date of supply; and an outline for how and when the Central Government seeks to vaccinate the remaining population in phases 1, 2 and 3.”

The court has sought information on the steps being taken by the Centre to ensure drug availability for mucormycosis which is also called ‘Black Fungus’.

Taking note of the Centre’s reply that states and UTs will provide vaccination free of cost to its population, the court said it is important that individual states and UTs may “confirm or deny” this position before this Court.

“Further, if they have decided to vaccinate their population for free then, as a matter of principle, it is important that this policy is annexed to their affidavit, so that the population within their territories can be assured of their right to be vaccinated for free at a state vaccination centre.

Hence, we direct each of the State/UT Governments to also file an affidavit within 2 weeks, where they shall clarify their position and put on record their individual policies, the bench said.

Trashing the Centre’s objection that judiciary should not enter into the policy making domain, the bench said it is trite to state that separation of powers is a part of the basic structure of the Constitution and policy-making continues to be in the sole domain of the executive.

“The judiciary does not possess the authority or competence to assume the role of the executive, which is democratically accountable for its actions and has access to the 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 the executive is an essential function, which the courts are entrusted to perform.

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