Doctrine of ‘Separation of power’ does not limit Judicial Review of Executive policies: Supreme Court seeks clarification from Centre in Vaccination drive

  • Sakshi Shukla
  • 07:32 PM, 02 Jun 2021

Supreme Court in its Judgment dated May 31, 2021, set out broad issues related to Vaccination, future projections and preparedness, Differential Pricing, Vaccine Logistics, for the Centre to answer.

A Full Bench of Justice DY Chandrachud, Justice Nageswara Rao and Justice Ravindra Bhat, while seeking clarifications from the Centre on several issues, observed,

“It is trite to state that separation of powers is a part of the basic structure of the Constitution. Policy-making continues to be in the sole domain of the executive. The judiciary does not possess the authority or competence to assume the role of the executive, which is democratically accountable for its actions and has access to the resources which are instrumental to policy formulation. However, this separation of powers does not result in courts lacking jurisdiction in conducting a judicial review of these policies.” ~ Supreme Court

Observations were made by the Bench on several counts;

On Vaccination Policy

Court enumerated the process followed for Vaccination in Phase 1 (for Healthcare workers & Frontline workers), Phase 2 (for vulnerable population above 45 where the Centre was procuring and providing to the States) and the recent liberalized vaccination policy under Phase 3, highlighting that the facility of on-site registration allowed by the Centre for 18-44 year age group is contingent on State/UT Government enabling this policy.

On Separation of Powers

Reproducing essence of Centre’s Affidavit filed on 09.05.2021, where it said, “The executive is battling an unprecedented crisis and the government needs discretion to formulate policy in larger interest and its wisdom should be trusted”, Court in its Judgment says, “Our Constitution does not envisage courts to be silent spectators when constitutional rights of citizens are infringed by executive policies. Judicial review and soliciting constitutional justification for policies formulated by the executive is an essential function, which the courts are entrusted to perform”

Court further cites US Supreme Court ruling in Jacobson v. Massachusetts, 197 US 11 (1905), where Justice Harlen noted the complex role of government in battling public health emergency; “While this court should guard with firmness every right appertaining to life, liberty or property as secured to the individual by the Supreme Law of the Land, it is of the last importance that it should not invade the domain of local authority except when it is plainly necessary to do so in order to enforce that law. The safety and the health of the people of Massachusetts are, in the first instance, for that Commonwealth to guard and protect….”

Furthermore, reliance is placed on another observation of the US Supreme Court made during the present time of pandemic; “Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten and a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists…”

Reference is also made to observation in Gujarat Mazdoor Sabha v. State of Gujarat, AIR 2020 SC 4601.

Issues with the Liberalized Vaccination Policy

  1. Vaccine Procurement and Distribution among different categories of the population: Court points out that unlike prior policies, the Liberalized Vaccination Policy does not prioritize persons with co-morbidities/other diseases, persons with disabilities, or any other vulnerable groups. As per reports, persons between 18-44 years of age have not only been infected by COVID 19, but have also suffered severe effects including prolonged hospitalization and, in unfortunate cases, death. Due to the changing nature of the pandemic, we are now faced with a situation where the 18-44 age group also needs to be vaccinated, although priority may be retained between different age groups on a scientific basis. “Hence, due to the importance of vaccinating individuals in the 18-44 age group, the policy of the Central Government for conducting free vaccination themselves for groups under the first 2 phases, and replacing it with paid vaccination by the State/UT Governments and private hospitals for the persons between 18-44 years is, prima facie, arbitrary and irrational”, Court observes.

With respect to procurement Court has acknowledged the point made by the Learned Amici, Jaideep Gupta that foreign manufacturers are not willing to deal with individual State/UTs and therefore concludes that the Liberalized Vaccination Policy may not be able to yield the desired results of spurring competitive prices and higher quantities of vaccines.

“Given that inter-State barriers in India are porous and persons are free to migrate and work in different parts of the country, it is essential to understand if the pro rata allotment will take into account such migration to more densely populated industrial and urban States/UTs. Other concerns, such as the stage of the pandemic, the healthcare infrastructure and existing capacities of a State/UT, the literacy rate, age and overall health condition of its population, may also be relevant factors in making such a pro rata determination”, Bench remarks on pro rata distribution on the basis of population, amongst all States.

  1. Effects of Vaccination by Private Hospitals under Phase III Policy

While outlining the broad issues, Court seeks clarification inter-alia on manner in which Central Government will monitor the disbursal of vaccines to private hospitals, specifically those who have hospital chains PAN India, in addition to, nature of intervention with respect to final end user price, charged by private hospitals.

  1. Basis and Impact of Differential Pricing

In addition to a detailed assessment, the Bench notes, “Union of India should consider utilizing its position as the monopolistic buyer in the market and pass down the benefit to all person.”

  1. Vaccine Logistics

Centre to apprise the Bench on manner in which cold storage equipment capacity is being balanced between the Centre and State/UTs, manner in which the States are managing the logistical burden for vaccinating persons between 18-44 years of age, along with persons above 45, whether cold storage facilities have increased for vaccination drive (in comparison to March 2020), whether cold storage equipment are indigenously manufactured or imported and the steps taken to improve cold storage facilities requiring lower temperatures

  1. Digital Divide

“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”, Court notes at the outset. Centre has been asked to submit clarifications on, feasibility to rely on friends/NGO for digital registration over CoWin in a situation where digitally literate are finding it difficult to book slots, over-crowding at CSCs in rural areas, certain centres to be opened up for on-site registration with a view to prioritize those with co-morbidities/disabilities/other socio-economic vulnerabilities, possibility of self-attestation of age, possibility of CoWin and Aarogya Setu be made available in regional languages and to conduct a disability audit for CoWin and Aarogya Setu.

Clarifications sought from the Union

  1. Roadmap of Projected availability of vaccines until 31 December, 2021
  2. Preparedness with respect to specific needs of Children
  3. Whether under the policy of the Government, it is permissible for State/UTs or Individual local bodies to access vaccine supplies of Foreign Manufacturers
  4. Number of Crematorium workers vaccinated in Phase 1
  5. Manner in which the Central Government will factor in diversion/price difference into their subsequent allocation and Disbursal of vaccines to the States
  6. Mechanism for redistribution if allotted quota is not picked up by the State/UT/Private Hospitals

On Accessibility barriers

Highlighting accessibility barriers, Court lays down following points that needs to be looked into:

  1. Audio or text captcha is not available
  2. Seven filters, which inter alia, include age group, name of vaccine and whether the vaccine is paid or free, are not designed accessibly
  3. 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
  4. Keyboard support for navigating the website is absent
  5. Adequate time should be given to disabled users to schedule their appointment without the possibility of being automatically logged off
  6. Accessibility protocols, such as use of appropriate colour contrasts, should be adhered to

Read Order: Centre To Submit Data On Percentage Of Population Vaccinated With One Or Both Doses; States To Clear Their Position On Providing Free Vaccination Within State: Supreme Court

Read Story on hearing: [Suo Moto COVID Crisis] Is It Realistically Possible To Expect People From Rural Areas To Register On The CoWin App?: Justice Chandrachud on Digital Divide

Case Title: In Re Distribution of Essential Supplies and Services During the Pandemic | SMW (C) No. 3 of 2021