By Dr G.V. Rao
The euphoria brought on by headlines in many leading Indian newspapers in the first week of March 2021, which read, “World leaders thank PM Modi, as India sends COVID-19 vaccines to 47 countries”, was short-lived.
The government had supplied 4.64 crore doses of vaccines to the rest of world. In the field of global diplomacy, which is based on global interdependence, such gestures are significant to raise the stature of a growing power like India. This was not only a humanitarian initiative but also a move to showcase our phenomenal supremacy in the advancement of medical sciences, while we pursue our claim for the permanent member status at the United Nations as a world leader.
Most ironically, come the month of April, this meteoric rise of India’s image as a vaccine manufacturer and supplier rescuing the planet, looked like an “All Fools’ Day” enactment. The second wave of Covid, much to the shock and surprise of not only all Indians, but also the whole world, reduced us to a graveyard of burning corpses. The dreadful images in the media of people losing their lives on hospital beds or even in the driveway without any medical attention, gasping for oxygen brought tears and despair to the nation. The spiralling infection and incessant death rates brought the country to a grinding halt, with many a wealthy lot literally fleeing the country for destinations offering better medical facilities. In these desperate circumstances, the common man was compelled to knock at the doors of courts for salvation. Political parties made capital of the situation and were quick to allege incompetence and mismanagement of the government which had been brought to its knees.
Courts cannot be expected to be mute spectators in such dire and pathetic circumstances when there was a failure of the government to anticipate these dreadful times, falling short of relevant medical supplies and infrastructure. It was indeed a shame that while India holds the Chair to the WHO and our health minister presides there we were shamed as the nation with the highest Covid infections and death rates. The centre’s policy came under attack and hence required scrutiny on the anvil of the constitutional provisions that are the bedrock of our democracy, such as Article-21 Right to Life and Article 14 Right to Equality.
The Supreme Court came to the rescue of the nation by intervening with a statesman-like approach to examine the allegations and shortcomings of the government’s overall Covid-handling policies. In these unprecedented circumstances when the government was faltering in its administrative capacity, the apex court played an extremely constructive role of helping it identify areas and scenarios which required maximum attention. The proceedings before the Supreme Court provided direction and guidance in finding solutions to complex situations requiring skilful tackling.
In its quick response, the Supreme Court initiated suo motu proceedings titled “In Re: Distribution of Essential Supplies and Services during Pandemic”. In its very second hearing, the Court on April 27, 2021, a week after notice having been issued, immediately identified the areas of concern which needed urgent attention—ensuring an adequate supply of oxygen, the availability of essential drugs, enhancement of critical medical infrastructure and streamlining the modalities of vaccination drive. It immediately directed by early May ’21, the setting up of a “National Task Force”, comprising the most eminent medical professionals in the country, to provide inputs and strategies for meeting the challenges of the pandemic.
By the time the government was ready with its affidavit for scrutiny by the Court, the first three areas of challenge and concern had already been addressed by the State with the assistance of local industry and foreign aid. Hence, the number of Covid infections and deaths had reduced vastly.
The attention of the Court was focussed on the vaccination policy of the government, to ensure vaccination of the entire populace at the fastest pace with the lowest cost. The second wave has demonstrated that if human lives are lost without adequate medical intervention or protection, then it would
end up in disastrous consequences for the entire country where every single citizen would be at a risk through newer mutants as the disease continues to spread and evolve.
The Court identified the core issues regarding the vaccination drive and outlined seven points which required the response of the government. These were as follows:
“The Union of India shall clarify (i) the projected requirement of vaccines as a result of the enhancement of coverage; (ii) the modalities proposed for ensuring that the deficit in the availability of vaccines is met; (iii) steps proposed for enhancement of vaccine availability by sourcing stocks from within and outside the country; (iv) modalities for administering the vaccines to meet the requirements of those in the older age group (45 and above) who have already received the first dose; (v) modalities fixed for administering the vaccine to meet the additional demand of the 18-45 population; (vi) how the supplies of vaccines will be allocated between various states if each state is to negotiate with vaccine producers; (vii) steps taken and proposed for ensuring the procurement of other vaccines apart from Covishield and Covaxin and the time frame for implementation; and (viii) the basis and rationale adopted by the Union Government in regard to the pricing of vaccines. The government shall explain the rationale for differential pricing in regard to vaccines sourced by the Union Government on one hand and the states on the other hand, when both sources lead to the distribution of vaccines to citizens.”
The Court then directed that the chief secretaries of states and Union Territories shall also file their responses clarifying the infrastructural facilities available with them and the steps already taken by them.
These effective and significant directives for a national disaster such as the pandemic are arguably historic and unprecedented in the history of the Supreme Court as the pandemic is to India. The order of April 30, 2021, came down heavily on the government for trying to prevent dissemination and exchange of information relating to the pandemic among the citizenry themselves through social and online media. It held that the government’s view of gagging the right to freedom of speech and expression and exchange of information as detrimental to the life of a functioning democracy. It quoted Nobel Laureate Amartya Sen to state that such dissemination of information prevented the drought in Maharashtra in 1973, but for which the problem could have taken the same proportions as that of the Great Bengal Famine of 1943. This issue, of the freedom, was originally reiterated by the nine-judge bench in K.S. Puttaswamy (Privacy-9J.) vs Union of India (2017) 10 SCC 1, where this Court was dealing with privacy rights matter. The Court went on to give a stern warning to the government and conveyed to the director general of police in the states that it would not hesitate to use its contempt powers should the police interfere with citizens’ rights.
The Court heaped immense praise on healthcare professionals (doctors, nurses, healthcare workers, laboratory technicians, ward staff, ambulance drivers, crematorium workers, etc.) and that the government was making every effort to take care of their well-being. The Court urged that while both central and state governments ban super-spreader events, every effort must be made to ensure that no citizen suffers on account of any medical requirements. The Court was generous in appreciating the efforts of the government, so far.
Through its elaborate order dated May 31, 2021 the Court examined the national vaccine policy and the issues related to it like vaccine procurement and distribution among various categories of the population, effects of vaccination by private hospitals under the liberalised scheme, as also the basis and impact of differential pricing, the liberalised vaccine policy, vaccine logistics and the digital divide.
The whole issue of online registration and those among weaker sections who could not access this and their needs were reviewed in the policy. The issues of storage and distribution, the basis of private hospitals making it chargeable, the cost at which they are to be made available, other matters relating to hoarding and black-marketing, also came to the mind of the Court. The question of vaccinating the 18-44 age group also drew the Court’s attention in big way and whether 50% should be go through the paid route or otherwise. The Court also wanted to know about the availability of vaccines in order to inoculate the entire populace by December 31, 2021. The Court questioned how the centre proposes to use the Rs 35,000-crore budgeted in the FY 2021-2022, and why this could not be utilised to provide free vaccination to the age group of 18-44. There was also the plea before the Court regarding the utilisation of PM Cares Fund.
Needless to say, the prime minister, while making his address to the nation where he announced free vaccination to those above the age of 18 till 44, was influenced by the observations of the Supreme Court. The result now is that the government will make the purchases and supply them free to the states.
The Supreme Court rejected the government’s objection of the Court’s interference in policy matters and specifically spoke its mind on it, saying that the Constitution envisaged interference by the Court where citizens’ rights were being infringed. The Court even cited John Vs Massachusetts, a case of 1905 in the US, where the courts were found to indeed have the power to review the government’s compulsory vaccination policies (then dealing with the small pox epidemic). The US courts did not find any constitutional irregularity while dealing with citizens’ rights vis-à-vis public health. Similarly, several other courts worldwide have been reviewing the functioning of governments relating to their response to public health emergency situations.
The Supreme Court put the controversy to rest in the following words: “This Court is presently assuming a dialogic jurisdiction where various stakeholders are provided a forum to raise constitutional grievances with respect to the management of the pandemic. Hence, this Court would, under the auspices of an open court judicial process, conduct deliberations with the executive where justifications for existing policies would be elicited and evaluated to assess whether they survive constitutional scrutiny.”
In a fascinating exercise of jurisdiction, the Supreme Court, without pronouncing any adverse judgment, has in suo motu proceedings, played an extremely useful and partnering role of guiding the central and state governments in tackling this unprecedented national crisis and should be commended for its support and direction to the nation.
—The writer is a Senior Advocate of the Supreme Court