Discrimination in Vaccination Can’t Defeat COVID-19: Supreme Court

While the virus is identity-blind, government’s counterplan engenders social and economic discrimination.

Updated
Law
5 min read
Central government’s policy for COVID-19 vaccination is “prima facie” unconstitutional, holds the Supreme Court. Image used for representation. 
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The second wave of the COVID-19 pandemic in India has further exposed the unpredictable nature of the coronavirus. From the rural to the urban, Hindu to Muslim – it spares no one. While the virus is identity-blind in its attack, the central government's plan to counter it is discriminatory on social and economic lines.

The Supreme Court called out this very discriminatory nature of the vaccination policy during its suo motu hearing on the COVID-19 crisis

The central government’s policy is “prima facie detrimental to right to health”, and the government shall think about revising it to withstand constitutional scrutiny.
Supreme Court of India

What is it that makes this vaccination policy discriminatory, and why are the courts calling it out? What can the Central government do to make this policy compliant with the constitution? The answer lies in the court's observation itself.

Differential Pricing & Decentralised Procurement – Unfair

As per the current policy, 50% of the vaccines manufactured in India are procured by the central government while the other 50% are left for state governments to directly negotiate and procure from manufacturers.

While the Centre’s share of vaccines will be focused on inoculating those who are 45 and above, the states are expected to procure vaccines to “accelerate immunisation” among the 18-44 age group.

While the Central government procures its share of the vaccine at a much cheaper rate, the states have to pay the price demanded by the manufacturer, which is much higher.

The apex court expressed reservations about the rationale underlying this differentiated pricing and decentralised procurement by highlighting that the beneficiary of the vaccine, whether procured by the Centre or the states, is the same.

“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.”
Supreme Court of India

The Digital Divide, Again

The vaccination policy makes two key assumptions in designing the framework for inoculation: Access to technology and monetary capacity to pay for vaccines at the market rate.

In order to register and book an appointment for vaccination, one has to access digital portals, such CoWin or Aarogya Setu app.

The low penetration of smartphones in India (while 61 percent of the population in India has mobile phones, only 17 percent has smartphones, on which the applications can run) is likely to render the process of inoculation through digital registration virtually useless and inaccessible.

The problem is not just of the substantive digital divide in terms of the absence of computer devices and internet, but also the qualitative differences in accessing these devices and internet services.

A large number of individual experiences of trying to access the CoWIN and Aarogya Setu apps to register or book an appointment for vaccination, highlight the technical glitches and opacity of the apps. For instance, when it comes to booking vaccination slots, people logging in from areas of poor connectivity find that available slots get booked within minutes, shutting them out. The apps also have no provision for intimating registered users when slots are open for booking.

The irregular availability of internet services across the country and limitations in the design and functioning of these apps make them exclusionary for the majority of the country that resides in rural areas, or lacks the financial resources, or have jobs that won’t allow them time or logistics to access the internet 24×7.

The Supreme Court highlighted adverse affects of this policy on the 18-44 age group.

“It is likely that compelling the state governments to negotiate with manufacturers on the grounds of promoting competition and making it attractive for new vaccine manufactures, will result in a serious detriment to those in the age group of 18 to 44 years, who will be vaccinated by the state governments.”
Supreme Court

Exclusionary Towards Socio-Economic Minorities

In its affidavit, the central government informed the Supreme Court that decentralised procurement would spur competitive markets to incentivise production and eventually drive down the prices of vaccines.

At the outset, the court demanded a rationale for making such a claim. The court also asked the Centre to show whether it relied upon any study or figures when proposing this open-market model.

“Are these studies of relevance in a pandemic when vaccines are a scarce and essential commodity, which is being produced by a limited number of manufacturers for a limited number of vaccines?”
Supreme Court

The court further said that vaccinations being provided to citizens constitute valuable public goods. Therefore, discrimination cannot be made between different classes of citizens solely on the ground that the central government’s immunisation drive only covered 45 and above. There is no basis for subjecting states, who are responsible for vaccinating the 18-44 age group, to pay a higher price for procuring the same vaccine from the same manufacturer.

It asked for centralised procurement and decentralised distribution.

“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. Once quantities are allocated by it to each state government, the latter would lift the allocated quantities and carry out the distribution.”
Supreme Court

To force the state governments to purchase vaccines at a commercial rate would pose a threat of excluding socio-economic minorities from the vaccination drive. The vaccination policy is blind to the fact that the 18-44 age group also comprises people who are Bahujans or belong to other underprivileged and marginalised groups who may not be able to pay.

The apex court recognised the exclusionary effect of the policy, and said:

“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 for free or should be subsidised and if so, to what extent. This will create disparity across the nation.”
Supreme Court

Virus Is Indiscriminate, Vaccination Policy Is Not

Vqueeram, a researcher based in Delhi, was the first to point out how discriminatory policy to curb an indiscriminate virus raise serious questions about the political identities such policy creates - that of a citizen, patient, precariat, and consumer.

The scale and degree of the COVID-19 infection have exposed that the virus is indiscriminate in its attack; it is identity-neutral. However, whoever catches the virus, who recovers, who dies, and who will have access to the cure are issues where identity reigns supreme.

The vaccination policy of the government immediately engenders hierarchies among equal citizens; hierarchies that create exclusion on the basis of access to resources and economic capacity. It threatens the creation of further identity-based divide in the country — the one between the vaccinated and the vulnerable.

In the coming days, both the courts and the public need to ask certain questions: Who is impacted, to what degree, and most importantly, why?

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