31 May 2121

Honourable Supreme Court of India can take Suo Motu in management of pandemic and can address the issue and ask for clarification

Case : In Re: Distribution of essential supplies and services. Suo Motu Writ Petition (Civil) No. 3 of 2021

Court : Supreme Court of India

Bench : Justice Dr. Dhananjaya Y Chandrachud, Justice L Nageswara Rao and Justice S Ravindra Bhat

Decided on : 31 May 2121

Relevant Statutes

Article 14 and 21 of the Constitution of India

Brief Facts & Procedural History

1. The current Suo Motu writ suit was filed when the Hon’ble Supreme Court of India took cognizance of the COVID-19 pandemic's handling during the second wave. In this, the Hon’ble Supreme Court of India issued a lengthy ruling addressing, among other things, vaccination policy, necessary medication supply, medical oxygen supply, medical infrastructure, healthcare staff augmentation and the challenges they confront, and concerns of freedom of speech and expression during the COVID19 pandemic. Hon’ble Supreme Court of India stated in its ruling that its observations and instructions were consistent with a bounded-deliberative approach, and the Union of India was therefore instructed to reconsider its policies on the aforementioned problems in light of this Court's views.

2. Following this judgment, by two more judges, Special Leave Petition was considered by the Hon’ble Supreme Court of India in response to an order of the High Court of Delhi regarding the provision of medical oxygen to the National Capital Territory of Delhi. The Bench principally made orders in connection to the provision of medical oxygen to the NCT of Delhi during the proceedings in that case. It did, however, establish a National Task Force based on a scientific methodology to offer a public health response to the COVID-19 pandemic by further order of the court. The National Task Force's mandate included, among other things, assessing and making recommendations for the need, availability, and distribution of medical oxygen; devising a methodology for allocating medical oxygen and conducting periodic reviews of the allocation based on the stage of the pandemic; and making recommendations for supplementing oxygen supplies, enabling audits in each State/UT to verify whether oxygen supplies had arrived at their intended destination; effectiveness, transparency, and efficiency of the State/distribution UT's networks; making recommendations for guaranteeing the supply of critical medications, increasing the number of medical and paramedical personnel, managing the pandemic, and treating patients.

3. The second wave of the COVID-19 epidemic has started to recede across the country since the previous hearing in this case, and the situation looks to be more controllable. The problem of vaccination is critical because health professionals throughout the world believe that immunizing the whole eligible population of a country is the single most essential duty in effectively battling the illness. 

4. The Honourable Supreme Court of India had the opportunity to review the facts supplied in the Union of India’s affidavit throughout the proceedings. Mr. Tushar Mehta, learned Solicitor General of India, standing on behalf of the Central Government, supplemented and amended the affidavit's statements during the hearing. The learned Amici, Mr. Jaideep Gupta, and Ms. Meenakshi Arora were also heard. It's also worth noting that individual state/UT governments and members of civil society have filed many interlocutory applications and affidavits in this case. Hon’ble Supreme Court of India read them to get a better understanding of the major points presented, as well as the useful remarks supplied by the Amici.

The Issue of the Case

Whether the Union of India compile with the issues address on 30 April 2021?

The Observations of the Court

1. Referring to the case Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Supreme Court of the United States addressed a constitutional liberty challenge to a forced vaccination statute established to battle the smallpox outbreak. In the context of the country's present public health emergency, the Hon’ble Supreme Court of India recognizes the dynamic nature of the measures. Across the globe, the government has been granted more flexibility in adopting policies that would have previously infringed individual liberty but are now necessary to combat the pandemic. Historically, the judiciary has recognized that during such public health emergencies, where the government operates in quick collaboration with scientists and other experts, constitutional scrutiny is changed.

2. Referring to the case Gujarat Mazdoor Sabha vs State of Gujarat AIR 2020 SC 4601, para 9, although speaking in the context of labour rights that policies to combat a pandemic must continue to be evaluated from a proportionality threshold to determine if they, among other things, have a rational connection with the object sought to be achieved and are necessary to achieve them.

3. Honourable Supreme Court of India observes that healthcare workers, frontline workers, and persons above the age of 45 years were prioritized for getting the COVID-19 vaccines. The Liberalized Vaccination Policy requires some of these persons to pay for the vaccines. Reports indicate that persons between 18-44 years of age have suffered from severe effects of the infection, including prolonged hospitalization and, in unfortunate cases, death. 

4. Honourable Supreme Court of India also observes the issue of increasing vaccine manufacturing and availability. Honourable Supreme Court of India has taken note of the Union of India’s submissions in its affidavit, that it is difficult to predict vaccine projections because they are dependent on variable factors such as the introduction of new foreign vaccines, the ability to exist manufacturers to increase production, and so on. It was also mentioned that the Central Government is in active talks with several private overseas producers to increase vaccine supply shortly.

5. Honourable Supreme Court of India also observes that in response to their questions about the poor and marginalized being harmed by vaccine prices, the Central Government stated in its affidavit that the eventual vaccine beneficiary would not be affected by the Liberalized Vaccination Policy because every State/UT has promised to vaccinate its residents free of charge. However, it is repeated that the Union of India should consider taking advantage of its dominant buying position in the market and passing the profit on to all people. Even if the States/UTs were to finance the higher-priced vaccinations as a burden they were not discharging before the introduction of the Liberalized Vaccination Policy, they may not have intended ahead of time for these monies to be spent at the behest of the public exchequer. Both the Centre and the States/UTs work in the service of the Indian people, raising and disbursing cash in their names. Additional money spent on vaccinations to combat a fatal pandemic is required investment for any State/UT government that has been battling the public health emergency for more than 15 months. However, an unnecessary expenditure would eventually harm the welfare of residents in those States/UTs, who might gain from the difference money being used to improve the state/health UT's infrastructure, which is equally vital in combating the epidemic. If the Central Government's unique monopolistic buyer position is the only reason it receives vaccines at a much lower price from manufacturers, the Hon’ble Supreme Court of India must assess the rationality of the existing Liberalized Vaccination Policy in light of Article 14 of the Constitution of India, as it may impose significant financial burdens, particularly on States/UTs in financial distress.

6. Honourable Supreme Court of India also observes that as a result of the Liberalized Vaccination Policy, responsibility for vaccination in phase 3 is split between the federal government (for people over 45, healthcare workers and frontline workers) and state/UT governments, as well as private institutions (for the age group of 18-44 years). This will need the State/UT Government and the Central Government to share the limited vaccination logistics available in the State/UT. This is in contrast to the Universal Immunization Programme, in which the federal government purchases and distributes vaccinations to states and territories to guarantee that their cold storage facilities are not overburdened. 

7. Honourable Supreme Court of India also observes that the statical data (Household Social Consumption: Education‟ was conducted by the National Statistics Office (July 2017-June 2018); Telecom Regulatory Authority of India’s report titled, Wireless Data Services in India; Annual Report of CSC for 2019-20, published by the Ministry of Electronics and Information Technology) demonstrate that India has a digital gap, notably between rural and urban areas. The progress gained in boosting digital literacy and access to the internet has yet to reach the bulk of the country's population. Further barriers to digital penetration include serious difficulties with bandwidth and connection. Due to the digital divide, a vaccination strategy that relies only on a digital portal to vaccinate a substantial portion of the country's population between the ages of 18 and 44 would be impossible to achieve its goal of universal immunization. The most vulnerable members of society would be the ones who suffer the weight of this accessibility restriction. This might have significant consequences for people in the above age group's fundamental rights to equality and health.

The Decision Held by the Court

1. Honourable Supreme Court of India instructs the Union of India to file an affidavit addressing the concerns and questions presented, ensuring that each issue is addressed individually and that no issue is overlooked. 

2. Honourable Supreme court of India also instructs the Union of India will ensure that copies of all relevant papers and file notations indicating its thought and culminating in the vaccination policy are attached to the vaccination policy when it files its affidavit. As a result, order the Union of India to provide its affidavit within two weeks.

3. Honourable Supreme Court of India also directs individual state/UT governments must affirm or refute the position. Furthermore, if they have opted to vaccinate their people for free, this policy must be appended to their affidavit as a matter of principle, so that the population within their boundaries may be assured of their right to get free vaccinations at a state vaccination centre. As a result, the Hon’ble Supreme Court of India directs each state/UT government to produce an affidavit within two weeks, clarifying their position and stating their particular policies.

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