The second phase of the COVID-19 pandemic in India has highlighted the coronavirus’s unpredictability. It spares no one, from the rural to the urban, Hindu to Muslim. Although the virus is identity-blind, the central government’s plan of action engenders economic and social discrimination. The Ministry of Health and Family Welfare declared in a press release that beginning from May 1, all people over the age of 18 would be eligible for the COVID-19 vaccine. However, a closer look at the press release reveals that the dual-pricing of vaccines is permitted, and states are required to compete with private parties in order to obtain vaccines from the open market, while the Centre is likely to obtain them at a reduced rate.

In the midst of a raging pandemic, the Central Government abandoned its initial intention of providing free vaccines to everyone. The current policy would imply three channels of vaccine distribution:

1. Through the Central Government, where the vaccines would be provided to frontline workers, health care workers, and those aged above 45 years free of cost.
2. Through State Government, where the vaccines would be procured from the open market and sold either free of cost or self-set price.
3. Through private clinics and hospitals where the vaccines would also be procured from the open market and sold at their self-set price.

As a result, states will now compete with one another to buy vaccines in a setting where demand significantly outnumbers supply by a wide margin. In addition to this, it will have financial repercussions for state governments, who would now have to conjure large sums on short notice to vaccinate their populations at a time when their balance sheets are still showing huge gaps owing to the pandemic’s effect on tax collections and other revenues; thus creating a divide between rich and poor states.

Serum Institute of India, a leading vaccine manufacturer in a recent announcement has said that it will sell vaccines to States at Rs. 300 per dose and to private clinics and hospitals at Rs. 600. On the other hand, the same is supplied to the Central Government at Rs. 150. This would push State governments to negotiate with manufacturers on the grounds of promoting competition.

The right to health is derived directly from Article 21 of the Indian Constitution, as the Supreme Court has consistently held in a number of decisions dating back to the 1984 case of Bandhua Mukti Morcha v. Union of India and Ors. It has a much broader significance, including the right to live with human nobility, the right to livelihood, the right to health, the right to clean air, and so on. Moreover, in the 1996 case of Paschim Bangal Khet Mazdoor Samity & Ors v. State of Bengal & Ors, the Supreme Court decided that the primary responsibility of a welfare state includes the government’s obligation to provide adequate medical facilities for its citizens.

In the present context, the policy can result in the denial of vaccines to individuals, especially those from disadvantaged and vulnerable groups, thus, negating the right to health and life guaranteed by Article 21 of the Constitution. The Supreme Court in a suo moto petition In Re: Distribution of Essential Supplies and Services During Pandemic expressed concerns about the rationale behind this differential pricing and decentralized procurement, pointing out that the vaccine beneficiary at the end is the same, whether procured by the Centre or the states. From the standpoint of public interest, full vaccination of everyone is critical for the country’s general well-being. It is not simply a matter of personal choice.

Further, the Apex Court in the same case observed that the manner in which the Centre’s new vaccination policy has been framed would seem to be detrimental to the right to public health, which is an integral component of Article 21 of the Constitution. The Hon’ble Court stated that the accessibility and availability of vaccines to the underprivileged and marginalized groups would be determined by each state government based on their financial resources, resulting in disparities throughout the country.

Moving forward, in terms of Article 14 of the Indian Constitution, the Apex Court stated that:

“Discrimination cannot be made between different classes of citizens who are similarly circumstanced on the ground that while the Central government will carry the burden of providing free vaccines for the 45 years and above population, the State Governments will discharge the responsibility of the 18 to 44 age group on such commercial terms as they may negotiate.”

Thus, there is no intelligible differentia between individuals belonging to different age groups solely based upon the Central Government’s vaccination campaign. Also, there no need for state governments to pay a higher price to procure the same vaccine from the same manufacturer. Both the States and the Centre have equal responsibility in terms of public health. Both are bound by the same constitutional provision. Thus the same does not pass the two-pronged test under Article 14 where there should be intelligible differentia and the differentia must have a rational nexus with the objective.

From a global perspective, it shall be noted that the WHO, as well as GAVI, a global vaccine alliance, have called for the declaration of vaccination as a “global public good” and urged countries to view immunization in terms of creating herd immunity, and thus protecting the entire population, rather than just protecting an individual. Therefore, the above policy is in direct violation of the right to health under Article 21 of the Indian Constitution and paves the way for unreasonable classification between citizens.

To conclude, the only rationale method to proceed with the issue at hand would be centralized procurement and decentralized distribution. The same has been pointed out by the Apex court in the aforementioned judgment:

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.

All in all, the current government’s vaccination policy immediately creates hierarchies among equal citizens; hierarchies that establish exclusion based on access to resources and economic ability. The same should immediately be rectified.

Harsh Khanchandani is a 2nd year BBA LLB student from Symbiosis Law School, Pune, India.

Suggested citation: Harsh Khanchandani, India’s Vaccination Policy: A Gross Violation of Right to Public Health and Equality, JURIST – Student Commentary, May 17, 2021, https://www.jurist.org/commentary/2021/05/harsh-khanchandani-india-vaccination/.

This article was prepared for publication by Khushali Mahajan, a JURIST staff editor. Please direct any questions or comments to her at commentary@jurist.org