Vaccine judgement: A constitutional promise fulfilled

The recent judgment of the Supreme Court relating to vaccine policy of the Centre, wherein the Court employed a ‘dialogic jurisdiction’ in providing a forum for stakeholders to raise constitutional grievances, has been criticized by a few as an incursion of the judiciary into a policy matter and an example of unwanted judicial activism and overreach.

Such criticism is misplaced. The judgment is, in fact, a model example of the role of a Court in a Constitutional democracy. Aharon Barak, the former Chief Justice of the Supreme Court of Israel, has stated that Court has an important role in bridging the gap between law and society and in protecting the fundamental values of democracy, with human rights at its centre. Barak, while highlighting the example of Nazi-ruled Germany, pointed out that for safeguarding democracy, it is essential to safeguard the basic human values, fundamental rights and dignity. Therefore, in a democratic system, the constitution has to be interpreted in a way that fulfills the ideals which protect human rights and dignity of an individual. The Supreme Court has repeatedly emphasized that it cannot remain passive, inactive or silent spectator if policy is capricious, arbitrary or grossly abusive. This is precisely what has been done by the Court in the vaccine case.

The Court dealt with vaccine policy keeping in mind the second wave of the COVID-19 pandemic that had devastated the country and left individuals in the lurch, exposing the tremendous inadequacies of system. The unreasonableness and capriciousness of the policy was evident from the fact that contagious disease is a Union-list subject and it is the primary responsibility of the UoI to contain such disease, prescribe medical assistance etc.

The Union argued that courts should not interfere and the Government’s wisdom should be trusted as, in battling this unprecedented crisis, it needs discretion in formulating policy in larger interest. This was negated by the Court holding that separation of powers does not exclude its jurisdiction to review the government’s policies in terms of their being reasonable, fair and non-arbitrary.

The Court forensically discussed issues relating to vaccine distribution between different age groups, vaccine procurement process, and the augmentation of vaccine availability in India. The court asked the Centre apt questions with respect to its Liberalized Vaccination Policy, thus, testing the policy on the anvil of reasonableness. The questions highlighted unexplained logical discrepancies in the vaccine procurement policy. For example, on Centre’s submissions that it negotiated a better price by placing large purchase orders, and that the differential pricing was introduced to encourage competition and lower the prices, the Court rightly asked the Union why this rationale was not used to acquire 100% of the doses which would have increased the size of the purchase order. The Court further sought clarification from the Centre on how Rs. 35000 crores earmarked in the Union Budget 2021-2022 for procuring vaccines has been spent. The Court also touched upon important aspects of vaccine accessibility through CoWIN portal such as on the ground of digital divide between urban and rural India, accessibility to CoWIN of visually impaired persons etc.

Further, the policy of the Union of asking States to purchase vaccines at a higher price, and thereby allowing these vaccine manufacturers to make higher profits, ran counter to the position adopted by the Centre before the WTO. There, the Centre asked for a waiver of Intellectual Property Rights relating to vaccines, arguing that commercial interests must give way to humanitarian considerations, in the wake of this unparalleled crisis faced by humanity across the globe.

Having realized the lacunae in the existing policy, within a week of this judgment, the Prime Minister in his address to the nation announced that Centre will procure vaccines for the States along with free vaccination for everyone above 18 years of age, including on-the-spot registration. This fundamental change in Centre’s policy for vaccine procurement was a consequence of the above noted judgment of the Supreme Court.

This judgement is a solemn reminder of why the people of this country repeatedly repose their faith in the Supreme Court as the highest sentinel of the rights of the common man. It was a bold and confident exercise of powers by a Court well-aware of its responsibilities in a constitutional democracy.