The Supreme Court on Monday questioned the Centre on India's vaccine policy and its rationale behind its procurement and dual pricing. "Do you treat yourself as one National Agency and will procure vaccines for the States too, or have they been left in a lurch?" the top court asked.
"We're not saying we have a better policy...In our April 30 order, we had pointed out some flaws. The policymakers must be flexible. It's not as though we are the Centre, we have a policy and that will not change," Justice DY Chandrachud observed. "Our arms are strong enough to come down if there's non-compliance on this," the judge added.
"The policymakers must have their ears to the ground. Wake up and smell the coffee and see what's happening across the country," the three-judge bench also comprising Justices LN Rao and S Ravindra Bhat observed.
Referring to the Central government's policies Justice Chandrachud added, "the ability to recognize that I am wrong is not a sign of weakness, but that of strength."
The apex court was hearing its suo motu case on issues arising out of the second covid wave. The matter was being heard for the first time since it was deferred on May 12, after Justice Chandrachud contracted COVID.
In its affidavit filed on May 9, the Centre had defended its vaccine policy which allows vaccine manufacturers—two in India (Bharat Biotech and Serum Institute of India) to determine vaccine prices for the Centre, States and other private entities. The policy also mandates that the Centre will get 50% of the vaccines manufactured, while 25% will go to the states and 25% to private entitles.
Give us the rationale behind dual pricing of vaccines: SC to Centre
The top court asked the Centre to justify the dual pricing in the vaccines. "Centre says it gets a low price since it buys in bulk (Rs 150). If this is the rationale, then why do states have to pay a higher price (Rs 400)? There needs to be one price for vaccines across the nation. The pandemic has evolved in the last two months," Justice Chandrachud observed.
Is it the Centre's policy to let States and even municipal bodies compete with each other to procure vaccines? the top court asked. "We now have a spectacle where different municipal corporations, different States are issuing global tenders to procure vaccines," Justice Chandrachud pointed out.
"Look at BMC's (Brihanmumbai Municipal Corporation) capacity, it might have a budget comparable with some of our states. Does the Government of India contemplate that for the procurement for foreign vaccines, that there will be individual States or corporations submitting bids or are you going to be the nodal agency?" he added.
"The only thing we want to address is the dual pricing policy. You are asking the States to pick up and compete with each other", Justice Bhat said. Solicitor General Tushar Mehta, who is representing the Centre, said this was factually incorrect.
To which, Justice Bhat said that the bench wanted to see government files along with the rationale that led to the formulation of the policy.
"Till date, we have not seen the policy document which articulates this. We want to see the files. To say that the Centre will procure at a lesser price, and manufacturers are free to fix prices at their own whims... We want to know the rationale. We also want to know why the pricing of 50% vaccines is left to manufactures," Justice Bhat said.
Justice Bhat pointed out that under the Drugs and Cosmetics Control Act, the Centre had the power to fix vaccine rates. Why is this not being invoked? he asked.
Senior advocates Meenakshi Arora and Jaideep Gupta who are assisting the court on this issue also raised concerns over the different rates. Private entities are charging Rs 800-900 rupees per dose of vaccine. This could get expensive for an average family of four, Arora pointed out.
Gupta told the bench that several States have filed appeals seeking to scrap the current vaccination policy. He added that the Centre claim to vaccinate all individuals by the end of this year was unrealistic and impossible based on the current figures and keeping the vaccine stock in mind.
At the outset, Mehta had earnestly urged the top court from interfering in the Centre's policy. "I request you to appreciate the policy as is now. I would earnestly urge that you do not travel down this path, the SG said. "The world is facing this crisis. The availability of vaccine manufacturers is few. I would wish as a citizen and officer of the Court that if there is any indication that Supreme Court is examining even the price structure, it will hamper (efforts for procurement)," Mehta added.
"We are only questioning the Centre's role," Justice Bhat replied. "We just want the rationale of the dual policy. What is the rationale? If there is enough then we will leave it. We will not hamper you in the negotiation. I don't know where you got this from," he added.
Digital illiteracy and divide far-flung in rural areas: SC
The bench also questioned the Centre's mandate of registration on the COWIN app compulsory to get vaccine slots. "You keep saying the situation is dynamic, but you have to keep your ears on the ground. You keep saying digital India, digital India, but you are unaware of the ground realities," Justice Chandrachud pointed out.
"Digital illiteracy is far-flung in rural areas," he added.
"You say COWIN registration is mandatory. Is it realistically possible for people in rural areas to start registering on this app? How do you expect them to do that? Our own law clerks and friends have tried. Why are we not treating people with comorbidities and those who are marginalized on the same plane?" Justice Chandrachud asked voicing his concerns.
"Even in the villages, they have to get registered at a common Centre. Is that really practical? Look at the poor agricultural labourer from Jharkhand who went to Rajasthan, he has to go to a community Centre there?," He added.
"This is a real fear amongst the people. I have gotten distress calls from people across the country, that they're not getting slots. They're all gone within seconds", Justice Bhat piped in.
The Supreme Court adjourned the matter after directing the Centre to file a detailed affidavit on the issues raised during the course of the hearing.