Bombay High Court: The Division Bench of Dipankar Datta, CJ and G.S. Kulkarni, J., said that it is for the Government and its appropriate department to explore ways and means to prevent contamination as well as exposure of vaccine beyond recommended temperature so that vaccination programme can be taken to doorsteps of elderly and disabled citizens.
Petitioners in the present matter were the practicing advocates who placed their concern for the elderly and disabled citizens and sought orders on respondents to introduce door-to-door vaccination for such citizens.
Bench appreciated the above concern and had asked the respondents to file reply affidavits in the last hearing.
What was the respondent’s response?
Respondent laid down the following reasons due to which door-to-door policy for COVID-19 vaccines does not exist:
“6.1 In case of any Adverse Event Following Immunization (“AEFI” for short), case management may not be proper and there will be delay in reaching health facility.
6.2 Challenges in maintaining protocol of observation of beneficiary for 30 minutes after vaccination.
6.3 The vaccine will be place in and out of Vaccine Carrier for each vaccination there by increasing chances of contamination and exposure beyond recommended temperature which could affect vaccine efficacy and cause Adverse Events Following Immunization which will be detrimental to vaccine confidence and programme performance.
6.4 high vaccine wastage due to increased time going from door to door taking more time for reaching out to each beneficiary.
6.5 Following protocols for Physical Distancing and Infection prevention and Control might not be possible during door to door campaign.”
Analysis and Decision
Bench in view of the above-stated reasons prima facie opined that despite not being experts in the field of medicine and healthcare, the said reasons, if indeed form part of a policy decision of the Central Government, need to be revisited for what follows.
If indeed, vaccination of elderly citizens by adopting a door-to-door vaccination policy is being avoided because such elderly citizens are aged and suffer from comorbidities, we regretfully record that the elderly citizens are literally being asked to choose between the devil and the deep sea.
Court held that a policy that leads to the above conclusion is arbitrary and unreasonable, for the elderly citizens are entitled to the protection of Article 21 of the Constitution of India as much as the young and abled-bodies citizenry of the country. Hence such a reason is difficult to be sustained.
With respect to paragraph 6.3 in the said reasons above, Court stated that it is difficult to assume that ambulances fitted with refrigerators to maintain the recommended temperature are not available and, therefore, efficacy of the vaccine would be compromised or that AEFI following vaccination would have a detrimental effect on vaccine confidence and programme performance.
Should long exposure of the vaccine result in contamination, it is for the Government in its appropriate department to explore ways and means to prevent contamination as well as exposure beyond the recommended temperature so that the vaccination programme can be taken to the door steps of elderly and disabled citizens.
Further, Bench added that if indeed proper temperature control measures are taken and personnel well trained to vaccinate together with the vaccine is made to travel in appropriate vehicles for reaching duly identified elderly and disabled citizens, who could benefit by reason of such vaccination, Court does not see any reason as to why this particular reason could hinder adoption of a door-to-door vaccination policy.
Finally, while concluding High Court addressed the reason at paragraph 6.5, which was found oblivious of the realities at the ground level.
Court stated that it could take judicial notice of the huge crown at the vaccination centers at any given point where COVID protocols are being unintentionally compromised.
Respondent did not explain how it would not be possible to maintain physical distancing and infection prevention control measures of a door-to-door vaccination campaign was introduced.
Anil C. Singh, Addl. Solicitor General, assured the Court that the decision of respondent 1 not to initiate door-to-door vaccination programme shall be given a relook within 2 weeks.
Hearing adjourned till 6-05-2021. [Dhruti Kapadia v. Union of India, 2021 SCC OnLine Bom 659, decided on 22-04-2021]
Advocates before the Court:
Ms Dhruti Kapadia and Mr Kunal Tiwari, Petitioners-in-person. Mr Anil C. Singh, Addl. Solicitor General a/w Advaith Sethna i/by Anusha P. Amin for respondent 1-UOI.
Ms. K. H. Mastakar for MCGM.
Mr A. A. Kumbhakoni, Advocate General a/w Smt. Purnima Kantharia, Govt. Pleader a/w Ms Geeta Shastri, Addl. Govt. Pleader for respondent-State.