Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ has expressed serious concerns on the ability of the marginalized members of society between the ages of 18-44 years to avail COVID-19 vaccination, exclusively through a digital portal in the face of a digital divide and has said,

“A vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between the ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide. It is the marginalized sections of the society who would bear the brunt of this accessibility barrier. This could have serious implications on the fundamental right to equality and the right to health of persons within the above age group.”

CoWIN Portal and how it works

According to the Union of India,

(i) The CoWIN portal enables one person to register 4 persons using the same mobile number;

(ii) All gram panchayats in the country have Common Service Centres which can effectively enable people residing in rural areas to register online for the vaccination;

(iii) Citizens who do not have access to digital resources could take help from family, friends, NGOs and CSCs;

(iv) Walk-ins cannot be permitted due to the scarcity of vaccines and fears of over-crowding at centres. The online registration requirement counters this fear and also effectively monitors the administration of the second dose. The policy may be re-considered subsequently when more vaccines are available;

(v) Identity proofs are required for the purpose of determining age and keeping a track of persons who are due for the second dose. However, in recognizing the issues arising with the insistence of one of the seven prescribed photo-ID proofs, the Central Government issued an SoP dated 23 April 2021 which enables bulk registration of certain identifiable groups, such as homeless persons, who would be identified and registered by the District Immunization Task Force; and

The Centre clarified that walk-in vaccination facilities will continue for persons over the age of 45 years in separate, designated vaccination centres. This is because vaccinations have been underway for this age group for a while and overcrowding has not been experienced so far.

Data, Drawbacks, and the Digital Divide

In the order, where the Court sought clarification from the Centre on various issues relating to the COVID-19 Vaccination policy, it relied on vaiours reports and surveys that highlighted that:

  • Around 4% of the rural households and 23% of the urban households possessed a computer. In the age group of 15-29 years, around 24% in rural households and 56% in urban areas were able to operate a computer; and
  • Nearly 24% of the households in the country had internet access during the survey year 2017-18. The proportion was 15% in rural households and 42% in urban households. Around 35% of persons in the age group of 15-29 years reported use of internet during the 30 days prior to the date of survey. The proportions were 25% in rural areas and 58% in urban areas.
  • Out of the total population of 1.3 billion, only 578 million people in India (less than 50%) have subscription to wireless data services. The wireless tele density in rural areas is 57.13% as compared to 155.49% in urban areas as on 31 March 2019. The report stated that: “[this] reflects the rural-urban divide in terms of telecom services‟ penetration. Since, the number of wireless data subscribers are less than 50% of the total wireless access subscribers, the number of wireless data subscribers in rural areas would be much lower”.
  • In a few Indian States like Bihar, Uttar Pradesh and Assam the tele density is less than 75%; and
  • The monthly income of persons living below the poverty line in urban areas and rural areas is Rs 1316 and Rs 896, respectively. However, to access internet data services, a minimum tariff plan would cost around Rs 49, which includes 1 GB data every 28 days. This would constitute 4-5% of the month‟s income of such persons accessing data. As such, the report notes that this would bear a considerable cost for persons living below the poverty line.
  • While there are 2,53,134 Gram Panchayats in India, as on 31 March 2020 only 2,40,792 Gram Panchayats are covered with at least one registered Common Service Centres. Hence, approximately 13,000 Gram Panchayats in India do not have a Common Service Centres.
  • The CoWIN platform is not accessible to persons with visual disabilities. The website suffers from certain accessibility barriers. These include:

(i) Audio or text captcha is not available;

(ii) The seven filters, which inter alia, include age group, name of vaccine and whether the vaccine is paid or free, are not designed accessibly. This issue can be addressed by creation of a drop-down list;

(iii) While visually challenged persons can determine the number of available vaccine slots, one cannot find out the day those slots correspond to. This can be resolved by ensuring that table headers correspond to associated cells;

(iv) Keyboard support for navigating the website is absent;

(v) Adequate time should be given to disabled users to schedule their appointment without the possibility of being automatically logged off; and

(vi) Accessibility protocols, such as use of appropriate colour contrasts, should be adhered to

“… there exists a digital divide in India, particularly between the rural and urban areas. The extent of the advances made in improving digital literacy and digital access falls short of penetrating the majority of the population in the country. Serious issues of the availability of bandwidth and connectivity pose further challenges to digital penetration.”

Clarifications sought from the Government:

“It may not be feasible to require the majority of our population to rely on friends/NGOs for digital registrations over CoWIN, when even the digitally literate are finding it hard to procure vaccination slots.”

  • The issue of over-crowding may also arise at CSCs in rural areas where people would have to visit constantly in hope of a vaccine slot opening up.
  • Certain vaccination centres may be earmarked for on-site registrations for the population aged between 18-44 years without the existing conditions prescribed in the circular dated 24 May 2021, potentially with a view to prioritize those with co-morbidities/disabilities/other socio-economic vulnerabilities. Alternatively, whether specific daily quotas may be introduced for on-site registration at each centre or specific centres.
  • This policy may not allay the issue of hesitancy which may arise from approaching a State authority (such as the District Immunization Task Force) to obtain registration for the vaccination. Whether on-site registration with selfattestation of age to ensure widespread vaccination can be provided.
  • The CoWIN platform and other IT applications like Aarogya Setu should be made available in regional languages. The timeline for ensuring the availability of the platform in multiple regional languages.
  • Conducting a disability audit for the CoWIN website and other IT application like Aarogya Setu to ensure that they are accessible to persons with disabilities.

[In re: Distribution of Essential Supplies and Services During Pandemic, 2021 SCC OnLine SC 411, decided on 31.05.2021]


Appearances before the Court

Mr Tushar Mehta, learned Solicitor General

Mr Jaideep Gupta and Ms Meenakshi Arora, learned Senior counsel and Amici

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COVID-19 Vaccination Policy| Supreme Court seeks clarifications from Centre on these five issues

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud, L. Nageswara Rao and S. Ravindra Bhat, JJ has, in a bid to understand the vaccination policy for COVID-19, has sought clarification from the Central Government on various aspects enumerated below. While doing so, the Court clarified that,

“This Court is presently assuming a dialogic jurisdiction where various stakeholders are provided a forum to raise constitutional grievances with respect to the management of the pandemic. Hence, this Court would, under the auspices of an open court judicial process, conduct deliberations with the executive where justifications for existing policies would be elicited and evaluated to assess whether they survive constitutional scrutiny.”

Vaccine Procurement and Distribution among Different Categories of the Population

Asking UoI to undertake a fresh review of its vaccination policy, the Court has sought clarification on the following:

  • The roadmap of projected availability of vaccines till 31 December 2021;
  • The preparedness with respect to specific needs of children in the event of a third wave of the pandemic in terms of medical infrastructure, vaccination trials and regulatory approval, and compatible drugs;
  • Whether under the policy of the UoI, it is permissible for State/UT Governments or individual local bodies to access vaccine supplies of foreign manufacturers;
  • The number of crematorium workers vaccinated in phase 1. A targeted drive can be conducted for vaccination of the remaining crematorium workers;
  • The State/UT Governments are diverting the vaccines (procured by them at a higher price than Central Government) for the persons in the age group of 18- 44 years to vaccinate persons above 45 years of age, due to a shortage of vaccines being supplied by the Central Government. The manner in which the Central Government will factor this quantity and price differential into their subsequent allocation and disbursal of vaccines to States/UTs for the persons above 45 years of age; and
  • The mechanism for redistribution, if the 25:25 quota in a particular State/UT is not picked up by the State/UT Government or the private hospitals.

Effects of Vaccination by Private Hospitals under the Liberalized Vaccination Policy

“… we are not opposed to the involvement of private hospitals in the vaccination drive. Private health care institutions have an important role as well. The UoI has correctly noted in its affidavit that these hospitals will reduce the burden on government facilities. This was also happening earlier for the vaccination of those above 45 years of age, where the Central Government was providing these hospitals with vaccines and they were allowed to charge patients a nominal fee (Rs 250). However, the issue is about the effect of privatizing 50% of all vaccines available for the 18-44 age group.”

  • The manner in which Central Government will monitor the disbursal of vaccines to private hospitals, specifically those who have hospital chains pan India. Further, whether (i) private hospitals are liable to disburse vaccines pro rata the population of States/UTs; and (ii) the mechanism to determine if private players are genuinely administering the lifted quota in that State/UT alone. The UoI shall place on record any written policy in relation to this.
  • Whether the Central Government conducted a “means-test” of the demographic of a State/UT to assert that 50% of the population in the 18-44 age group would be able to afford the vaccine. If not, the rationale for private hospitals being provided an equal quota for procurement as the State/UT Governments.
  • The manner in which the Centre and States/UTs shall ensure an equitable distribution of vaccines across sections of the society, and how this factors into the rationale of equal apportionment between State/UT Governments and private hospitals.
  • The nature of the intervention with respect to the final, end-user price that is being charged by private hospitals, especially when a cap on procurement by the private hospitals has been set.

Basis and Impact of Differential Pricing

If the Central Government’s unique monopolistic buyer position is the only reason for it receiving vaccines at a much lower rate from manufacturers, it is important for us to examine the rationality of the existing Liberalized Vaccination Policy against Article 14 of the Constitution, since it could place severe burdens, particularly on States/UTs suffering from financial distress.”

While the Court commended the co-operative efforts of the UoI and the private manufacturers in developing and distributing vaccines which are critical to mitigate the pandemic, it sought clarifications on the process of development and augmentation of vaccine production and its pricing for States/UTs and private hospitals.

  • Since the Central Government has financed (officially, Rs 35 crores to BBIL and Rs 11 crore to SII for phase 3 clinical trials) and facilitated the production (or augmentation of production) of these vaccines through concessions or otherwise, it may not be accurate to state that the private entities have alone borne the risk and cost of manufacture. Additionally, the Central Government would have minimized the risks of the manufacturers by granting Emergency Use Authorization to the vaccines, which should factor into its pricing.
  • The manner in which public financing is reflected in the procurement price for the Central Government, which is significantly lower than price for the State/UT Governments and private hospitals. Given that the R&D cost and IP have either been shared between the Central Government and the private manufacturer (in case of Covaxin) or the manufacturer has not invested in R&D of the vaccine (in case of Covishield), the manner in which the pricing of vaccines has been arrived at, with the Central Government refusing to intervene statutorily. The justification for intervening in pre-fixing procurement prices and quantities for States/UTs and private hospitals, but not imposing statutory price ceilings.
  • Comparison between the prices of vaccines being made available in India, to their prices internationally.
  • Whether ICMR/BBIL formally invited contracts for voluntary licensing and if so, whether they have they received viable offers. The manner in which the UoI is independently trying to assist manufacturers for developing BSL3 labs which are essential for Covaxin production.

Vaccine Logistics

  • The manner in which cold storage equipment capacity is being balanced between the Central and State/UT Governments. The manner in which the States/UTs are managing the logistical burden for vaccinating persons aged between 18-44 years, along with persons aged over 45 years.
  • Whether cold storage facilities in India have increased for the COVID-19 vaccination drive; the present numbers, and comparison with the numbers prior to March 2020;
  • Whether the cold storage equipment is indigenously manufactured or is imported. If it is imported, the steps which have been taken to start indigenous manufacturing.
  • The steps being taken to improve the cold storage management for vaccines which may require lower temperature to be stored, compared to the ones which currently have approval in India.

Digital divide

“… there exists a digital divide in India, particularly between the rural and urban areas. The extent of the advances made in improving digital literacy and digital access falls short of penetrating the majority of the population in the country. Serious issues of the availability of bandwidth and connectivity pose further challenges to digital penetration. A vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country between the ages of 18-44 years would be unable to meet its target of universal immunization owing to such a digital divide. It is the marginalized sections of the society who would bear the brunt of this accessibility barrier. This could have serious implications on the fundamental right to equality and the right to health of persons within the above age group.”

  • It may not be feasible to require the majority of our population to rely on friends/NGOs for digital registrations over CoWIN, when even the digitally literate are finding it hard to procure vaccination slots.
  • The issue of over-crowding may also arise at CSCs in rural areas where people would have to visit constantly in hope of a vaccine slot opening up.
  • Certain vaccination centres may be earmarked for on-site registrations for the population aged between 18-44 years without the existing conditions prescribed in the circular dated 24 May 2021, potentially with a view to prioritize those with co-morbidities/disabilities/other socio-economic vulnerabilities. Alternatively, whether specific daily quotas may be introduced for on-site registration at each centre or specific centres.
  • This policy may not allay the issue of hesitancy which may arise from approaching a State authority (such as the District Immunization Task Force) to obtain registration for the vaccination. Whether on-site registration with selfattestation of age to ensure widespread vaccination can be provided.
  • The CoWIN platform and other IT applications like Aarogya Setu should be made available in regional languages. The timeline for ensuring the availability of the platform in multiple regional languages.
  • Conducting a disability audit for the CoWIN website and other IT application like Aarogya Setu to ensure that they are accessible to persons with disabilities.

Final directions

The Court directed UoI to file an affidavit, with each of the abovementioned issues responded to individually and no issue missed out.

The affidavit should also provide the following information:

  • The data on the percentage of population that has been vaccinated (with one dose and both doses), as against eligible persons in the first three phases of the vaccination drive. This shall include data pertaining to the percentage of rural population as well as the percentage of urban population so vaccinated;
  • The complete data on the Central Government‟s purchase history of all the COVID-19 vaccines till date (Covaxin, Covishield and Sputnik V). The data should clarify: (a) the dates of all procurement orders placed by the Central Government for all 3 vaccines; (b) the quantity of vaccines ordered as on each date; and (c) the projected date of supply; and
  • An outline for how and when the Central Government seeks to vaccinate the remaining population in phases 1, 2 and 3.
  • The steps being taken by the Central Government to ensure drug availability for mucormycosis.

The affidavit is to be filed within 2 weeks.

[In re: Distribution of Essential Supplies and Services During Pandemic, 2021 SCC OnLine SC 411, decided on 31.05.2021]


Appearances before the Court

Mr Tushar Mehta, learned Solicitor General

Mr Jaideep Gupta and Ms Meenakshi Arora, learned Senior counsel and Amici

Case BriefsHigh Courts

Madhya Pradesh High Court: The Divison Bench of Mohammad Rafiq, CJ. and Atul Sreedharan, J., heard and decided on a series of interlocutory applications which were filed with different prayers all in relation with COVID 19.

The prayers in these petitions included:

  • for an appropriate direction to the respondent/State to ensure availability of required medicines for treatment of Black Fungus (Mucormycosis) and to control cost of such treatment.
  • for direction to the State Government to install CT-Scan and MRI machine in Medical College/District Hospital, Ratlam. These applications were disposed of with liberty to the applicants to give suggestions at the time of hearing of the aforesaid application.
  • praying that the applicant was given time-slot for vaccination, but no such vaccine was provided to her. In this regard, she made complaint and the Court in this regard directed that upon the applicant/intervener approaching the Chief Medical and Health Officer, Jabalpur, he shall ensure that time slot is provided to her for the purpose of vaccination and she is vaccinated.
  • prayer that the State Government be directed to also provide the cost of medicines for treatment under the Ayushman Bharat Nirmayan Yojna for treatment of the persons covered in that scheme.
  • for a direction to the State Government to take appropriate action against the erring persons for selling fake Remdesivir and other spurious drugs for committing offences of murder under Section 302 of the Indian Penal Code, apart from those under National Disaster Management Act, Epidemic Diseases Act, 1897 and the Drugs and Cosmetic Act, 1940, he further prayed the affected persons or in case of death, the family members of the deceased, be granted adequate compensation as per provision of Section 27 of the Drugs and Cosmetic Act, 1940.

The Court in this regard opined that no such specific direction can be issued by this Court while dealing the matter under the scope of PIL. It is always for the Investigating Officer to find out on the basis of evidence collected by him during the course of investigation as to what offence is made out and accordingly submit the chargesheet. If and when the chargesheet is submitted, the Court concerned will have the occasion to examine whether or not such offences are prima facie made out for proceeding further in the trial or any other offence is made out on the basis of evidence collected by the Investigator.

  • prayer to issue direction to the State Government to lodge an FIR in the matter of death of five persons due to shortage of oxygen in the Galaxy Super Speciality Hospital, Jabalpur in accordance with the findings recorded in the Magisterial Enquiry conducted in the matter. Advocate General submitted that the FIR had already been lodged and the investigation was going on, in this view the Court did not deem fit to pass any order.
  • prayer for quashing of the order dated 20-5-2021 passed by the Collector, Indore by which a complete lockdown has been imposed in the Indore city and supply of all the essential items had been stalled. The Court opined that Collector, Indore should review his order and ensure just and equitable method of having all grocery shops, daily need shops, fruits and vegetable vendors, open during specified hours of five days a week so that neither the residents of Indore city nor the small vendors face any hardship.
  • the State Government should be required to demonstrate its preparedness to deal with the apprehended third wave of Covid-19 and submit the time frame and action plan to vaccinate the entire population of the State.
  • A prayer invited attention of the Court that the State Government has not taken any effective measures regarding fixation of the maximum rates for treatment of the Covid patients in various Private Hospitals/Nursing Homes by indicating capping of the such charges, in compliance of the order passed by this Court on 19-4-2021.

Amicus Curiae submitted that pursuant to the order passed by this Court on 19-5-2021, he had interaction with the representatives of the Indian Medical Association and M.P. Nursing Homes Association. According to him, the discussions resulted into fruitful suggestions. They are ready to make addition of 40% as directed by the State Government in its order dated 4-9-2020, invoking its power under the National Disaster Management Act and Epidemic Diseases Act, on the charges reflected in the bills of various kind of the treatments and facilities provided by them (private hospitals/nursing homes) in the month of January and February 2020 immediately before the start of the pandemic. The Court opined that , the package method of charging has to be discouraged and the suggestion which has emerged in the deliberations made by the learned Amicus Curiae with the representatives of the Indian Medical Association and M.P. Nursing Homes Association that charge for the various kind of treatments and facilities being provided by the nursing homes and private hospitals in the months of January and February, 2020 may form basis of adding 40% thereto, to fix outer limit capping of charges taken for treatment of Covid 19 patient which appears to be reasonable criteria and would be beneficial to the public at large and save them of undue exploitation.

  • Prayer that direction be issued to the State Government to declare Black Fungus (Mucormycosis) as “notified infectious disease” and that State Government be directed to regulate supply and cost of Amphotericin-B injections and any other medicines that would be required to treatment of Mucormycosis, so that patients and their families are not exploited.

The Court in this regard impressed upon the State Government to effective take steps so as to save the life of more than 1000 patients who are infected and many more who might be infected during the course of time. In regard to vaccination the Court opined that since as per Action Taken Report filed today by the State Government, tender has not been issued so far, the State Government may consider suitably increasing the number of doses for procurement through the global tender based on the actual requirement, particularly when each person is required to be given two doses for complete vaccination.

From the submissions made the Court concluded that the State Government has not received even half of the promised quantity of the vaccination doses for the month of May 2021, either from the Central Government for the age group of 45 and above or even from two major manufacturers within the country in response to orders placed with them. The global tender issued by the different State Governments have also failed to yield in positive result.

The Court further opined that the Central Government ought to reconsider efficacy of its vaccination policy. The Central Government should consider taking upon itself the responsibility of providing required number of vaccination doses to the State by setting up more and more units in all the States with required licence from the local manufacturers, to ramp up the production of the vaccination on war footing. Additionally, the Central Government should by itself consider procuring the vaccination doses in sufficient quantity from the manufacturers from outside the country to provide the same to the States, rather than leaving it upon the States to do so. The Central Government should also consider procuring the medicine Amphotericin-B or any other equivalent medicine by setting up more number of manufacturing unit within the country or from outside the country wherever, they may be available for immediately treatment for saving hundreds of precious lives of the citizens.

A detailed affidavit/Action Taken Report regarding the preparedness of the State Government for apprehended third wave of Covid-19 to come up on 31-05-2021.

[In Reference (Suo Motu) v. Union of India, 2021 SCC OnLine MP 963, decided on 24-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

Appearance:

For petitioner: Mr. Siddharth Gupta

Amicus curiae: Mr Naman Nagrath, Senior Advocate with Mr Jubin Prasad, Advocate a

For Respondents: Mr Purushaindra Kaurav, Advocate General, Mr Pushpendra Yadav, Additional Advocate General and Mr Swapnil Ganguly, Deputy Advocate General, Mr Jitendra Kumar Jain, Assistant Solicitor General and Mr Vikram Singh, Advocate for the Union of India, Mr Shivendra Pandey, Advocate, Mr Shreyas Pandit, Advocate, Mr A.M. Mathur, Senior Advocate assisted by Mr Abhinav P. Dhanodkar, Advocate.