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New Delhi: The Supreme Court has directed the Centre to revisit COVID-19 vaccine pricing policy for 18-44 age group, saying it would prima facie be detrimental to the right to life which includes public health and is violative of fundamental right under the Constitution.

Expressing reservations on the vaccine policy under which the states and private hospitals are to procure 50 per cent of the vaccines in order to immunise persons in the 18-44 years age group, the top court said leaving the state governments to negotiate directly with manufacturers will produce chaos and uncertainty.

A bench headed by Justice D Y Chandrachud said once the vaccination programme has been opened up for persons other than the 45 plus age group, it would not be logical to impose the obligation to source vaccinations for the 18-44 age group on the state governments.

This will leave each state to negotiate supply schedules, delivery points and other logistical arrangements with the manufacturers, it said.

The top court noted that the manufacturers have suggested two different prices, a lower price which is applicable to the Centre and a higher price which is applicable to the quantities purchased by state governments.

“Prima facie, the rational method of proceeding in a manner consistent with the right to life (which includes the right to health) under Article 21 would be for the Central government to procure all vaccines and to negotiate the price with vaccine manufacturers,” the court said in a 64-page order uploaded on its website late Sunday night.

The apex court said that compelling state governments to negotiate with manufacturers on grounds of promoting competition and making it attractive for new vaccine manufacturers will result in a serious detriment to those in the age group of 18 to 44 years, who will be vaccinated by state governments.

The social strata of this age group also comprises persons who are Bahujans or belong to other underprivileged and marginalised groups, like many in the other population age groups. They may not have the ability to pay.

“Whether or not essential vaccines will be made available to them will depend upon the decision of each state government, based on its own finances, on whether or not the vaccine should be made available free or should be subsidised and if so, to what extent. This will create disparity across the nation. The vaccinations being provided to citizens constitute a valuable public good,” the bench said.

The bench, also comprising Justices L Nageswara Rao and Ravindra Bhat said, discrimination cannot be made between different classes of citizens who are similarly circumstanced on the ground that while the central government will carry the burden of providing free vaccines for the 45 years and above population, state governments will discharge the responsibility of the 18 to 44 age group on such commercial terms as they may negotiate.

The apex court said that once quantities are allocated by it to each state government, the latter would lift the allocated quantities and carry out the distribution.

“While we are not passing a conclusive determination on the constitutionality of the current policy, the manner in which the current policy has been framed would prima facie result in a detriment to the right to public health which is an integral element of Article 21 of the Constitution.

“Therefore, we believe that the Central Government should consider revisiting its current vaccine policy to ensure that it withstands the scrutiny of Articles 14 (equality before law) and Article 21 (Protection of life and personal liberty)of the Constitution,” it said.

The apex court noted the submission of the Central government that it had constituted a National Expert Group on Vaccine Administration for COVID-19 on August 7, 2020 and operationalisation of the immunization programme from December 2020.

It also took note of Centre’s submission that as of April 26, 2021, over 13.5 crore vaccine doses (approx. 9 per cent of the Indian population) have been administered to frontline workers, healthcare workers and persons who are 45 years of age and higher in the three Phases of immunization.

At present, the two coronavirus vaccines – Covishield and Covaxin — are in use.

The bench said that at present, there are only two manufacturers for the authorized vaccines The available stock of vaccines is not adequate to deal with the requirements of both the categories.

“The Central Government must take the responsibility of providing guidance to every State on the quantities to be supplied to each State, the vaccine(s) being allocated, the period of delivery, and the number of persons who can be covered for vaccination, among other details.

“Leaving the State Governments to negotiate directly with manufacturers will produce chaos and uncertainty. The object of vaccinating the 18-44 age group cannot be achieved in the absence of stocks being available,” the apex court said.

The directions were passed in a suo motu case for ensuring essential supplies and services during the COVID-19 pandemic.

The bench has taken up issues such as the projected demand for oxygen in the country at present and in the near future, how the government intends to allocate it to “critically affected” states and its monitoring mechanism to ensure supply.

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