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A Special Leave Petition has been moved in Supreme Court against the Bombay High Court judgment dated April 29, 2021, dismissing PIL seeking uniformity in vaccine prices.

The SLP has been filed by AOR Ashutosh Ghade, with Advocate Vivek Shukla of V. Shukla and Associates, a Mumbai based law firm. They had represented the petitioners in the High Court and are to submit their arguments in the present SLP as well.

It is the contention of petitioners that the High Court erroneously refused to entertain the PIL and passed unreasoned, vague oral order which is not permissible in law.

“The High Court committed a factual error that PIL Writ Petition was filed after this Hon’ble Court took the suo-moto cognizance of the similar matter by Order dated 27.04.2021 whereas, the correct fact is that the petitioners filed said PIL WP on 26.04.2021. Therefore, the PIL WP was maintainable”, the plea states.

Petitioner highlights the disparity in vaccine prices quoted by Serum Institute and Bharat Biotech;

• Central Government: Rs 150 per dosage
• State Government: Rs 400 per dosage by SII and Rs 600 by Bharat Biotech
• Private Hospitals: Rs 600 per dosage by SII and Rs 1200 by Bharat Biotech

And seeks to declare the same discriminatory, arbitrary, unreasonable and in violation of Articles 14, 19 and 21 of the Constitution. Directions are also sought to the Centre and the State Governments to take all steps to ensure “availability of COVID 19 vaccine at uniform rate of Rs 150 per dose, by exercising powers under the Disaster Management Act, 2005, Essential Commodities Act and Sovereign powers to achieve goal of complete vaccination.”

Grounds inter-alia preferred by the Petitioner;

1. High Court failed to pass a reasoned order while dismissing the PIL, which is not permissible in exercise of powers under Article 226 of the Constitution.
2. Oral Observation made by the High Court, rejecting the PIL, is based on a wrong contention as the petitioners had approached the High Court before cognizance was taken by the Top Court.
3. Order dated 27.04.2021 of the Supreme Court clarified the object of Suo Moto petition taken up, in the words, “The object of these proceedings are not to supplant the High Court or to takeover from High Court what they are doing. High Courts are in a better position to monitor what is going within their territorial boundaries.” This further substantiate the contention of the Petitioners.
4. High Court failed to appreciate the larger Public Interest raised by the Petitioners, in terms of varying vaccine prices.
5. High Court did not consider the global market prices of vaccines, which is comparatively lower, including Saudi Arabia, South Africa, US, UK, EU, Brazil and Bangladesh.
6. High Court did not acknowledge that cost fixing by Pharmaceutical Industries fall out of their jurisdiction, as the Central Government has declared COVID 19 as a National Disaster and by powers under NDMA, it is only the Centre which is entitled to take decisions relating to Vaccine Prices and dissemination.
7. High Court failed to take into account the possibilities of black marketing, creating artificial shortage, if such disparity is allowed.

Questions of Law inter-alia raised by the SLP

1. Whether the High Court was justified in refusing to hear the PIL Writ Petition moved by the Petitioners, by giving oral order under Article 226 of the Constitution?
2. Whether the High Court committed factual error in not considering the date of moving the PIL?
3. Whether the High Court erred in holding ouster of its jurisdiction under Article 226, taking into account the order passed by the Top Court on April 27^th?
4. Whether the High Court grossly erred by not acknowledging the cost variance, thus discriminating and playing with the health of citizens?
5. Whether the High Court grossly erred by not taking cognizance of the PIL, particularly when State of Maharashtra is one of the most badly hit States in the country?

The interim prayer made by the Petitioner requests to limit the vaccine price at Rs 150 + GST to Centre, States and needy citizens.

Case Title: Fayzan Khan v. State of Maharashtra