Prof K Nageshwar: New Vaccine Policy Patently Arbitrary & Unconstitutional

The centre has unveiled a new vaccine policy. As per this policy, the two vaccine manufacturers will supply 50% of their vaccine doses to the union government, while the remaining doses will be made available to the state governments and private hospitals in the open market. All the imported vaccines will be available only in the private market.

The centre will get an assured 50 percent quota in the vaccines produced in the country. But, the states have no such assured allocations. They have to compete with the private players. Such discrimination between centre and the states is patently anti-federal. Both centre and the states have an equal responsibility to fight the pandemic. States have to compete among themselves and fight private players to procure vaccines. This will impose a disproportionate burden on the states. Besides, the poorer states will be led down. COVID-19 does not discriminate between the rich and the poor states. How can vaccines that prevent it can do?

Let’s recall here the experience of the United States. During the early stage of the pandemic, the Trump administration made individual states procure ventilators and personal protective equipment (PPE) on their own, leading to a chaotic situation where states outbid each other and diversion of supplies from one state to another became rampant. One can easily understand what will happen in India if states are asked to compete with each other and also with the private players for procuring vaccines. Thus, the deployment of vaccines will be determined not by the intensity of the pandemic, but by the fiscal capacity of the individual states.

In the present scenario itself, there is a huge disparity in the levels of vaccination. 60 percent of the cumulative doses as of 12 April were administered in just eight states. Current COVID-19 vaccination coverage across states ranges between 4 to 25 percent, with Uttar Pradesh at the very bottom. The free market-driven vaccination program would result in inequalities in access to vaccines which is considered to be the most important protections against the raging pandemic.

The state governments have to pay Rs 400 and private players are charged Rs 600 per dose. At present, the centre is procuring vaccines at Rs.150 per dose. This means the price of the vaccines is inflated by 266 percent for states and 400 percent for private players. Vaccine developers should certainly be incentivized, as their development is a risky investment. But this does not justify giving license to super-profits. It may be recalled here that on April 6, Adar Poonawalla, CEO of Serum Institute of India went on record saying that even at the subsidized price of Rs150 per dose, the company was not selling at the cost price but was making a profit.

The new vaccine policy violates article 14 and article 21 of the Constitution of India. Writing in Live Law, Manu Sebastain, says, for a classification to be valid under Article 14, it must pass a two-pronged test:

(i) it should be founded on an intelligible differentia, which distinguishes those that are grouped from those that have been excluded; and

(ii) the differentia must have a rational nexus with the object that the statute seeks to achieve.

Here, there is no intelligible differentia between the States and the Centre as far as their duties to protect public health are concerned. Both have the same constitutional obligation.

Also, the classification is defeating the purpose of universal vaccination.

The exclusion of persons below the age of 45 years from the free vaccine pool of the Centre also smacks of unreasonable classification.

In this backdrop, the principle of ‘manifest arbitrariness’ also comes into application. As per Supreme Court precedents, actions are taken capriciously, irrationally, and/or without adequate determining principle are “manifestly arbitrary”.

Recently, the Supreme Court had quashed the Central Government’s policy to deny the benefit of interest waiver during loan moratorium to loans above Rs 2 crores. The Court held that the policy of the Government to restrict such interest waiver to loans below Rs 2 crores was “arbitrary and discriminatory”, as no justification or reasons were given for making such a classification. The Court’s conclusion was based on its observation that the hardships faced by both categories were similar.

If the same principle is applied, this vaccination policy will not pass the muster of constitutionality.

Right to life is a fundamental right that subsumes in it right to health. The right to vaccination is therefore integral to the right to health and thereby right to life.

-By Prof K Nageshwar

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