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Mainstream, VOL LIX No 26, New Delhi, June 12, 2021

Cathartic Effect Of Supreme Court’ Intervention: Free Vaccine For All Adult Population | Vijay Kumar

Saturday 12 June 2021

by Vijay Kumar*

John Maynard Keynes, one of the greatest economists and staunchest proponents of state’s intervention in economic matter, who along with longest serving American President and one of the greatest statesmen of last century, Franklin D. Roosevelt, saved and civilized capitalism by transforming it from ‘laissez faire’ into welfare state, once remarked that “man will do the rational thing only after exhausting all irrational options”. The decision of Government of India, announced by Prime Minister through address to the nation, on 7th June, 2021 that the Central Government would procure all the vaccines and vaccinate all the adult population free of costs easily fits into Keynesian characterization. The reversal of earlier wholly botched up vaccination policy was the result of Supreme Court’ intervention through its order dated 31st May, 2021, which was released on 2nd June, 2021. Stung by the withering indictment of the Supreme Court that vaccination policy was arbitrary and irrational, the Modi Govt, always preoccupied with image and narrative, stood compelled to climb down by carrying out course correction.

The Supreme Court in its first detailed order dated 30th April, 2021 made it clear at the outset in paragraph 5 that it was embarking on dialogical exercise with Government and other stake holders in a spirit of cooperation, and the suo motu intervention should not be treated as adversarial system. Notwithstanding this spirit of dialogical nature of exploration, the Government of India did not appreciate the scrutiny of its vaccine policy by the Apex judiciary. The Government of India filed voluminous affidavits in which it made arrogant, extravagant and outlandish claim of judicial overreach, which was rejected by the Special Bench comprising of Justice D.Y. Chandrachud, Justice L.Nageswar Rao and Justice S.Ravindra Bhat with ex cathedra proclamation that “it cannot be silent spectators when the Constitutional rights are infringed .

The Special Bench held further hearing on 31st May, 2021 and again passed a comprehensive order and sought many clarifications/ information from the Government in respect of vaccination policy. The Special Bench clarified in the beginning itself in paragraph 5 that it was confining to vaccination policy alone in view of declining number of active Corona cases and other issues can await adjudication later on. In paragraph 21 of the order, Justice Chandrachud Bench declared in unequivocal terms that vaccination policy for 18-44 years age group was arbitrary and irrational, an argument raised by this writer in his Article title “Supreme Court’s Intervention Is CRI DE Coeur of Hour” (Mainstream – 29th May, 2021). The Court further took into account that differential prices charged by different hospitals for different age groups and termed the same as iniquitous, and thereafter, issued directive in paragraph 30 to explain the policy pertaining to utilization of Rs.35, 000 Crores earmarked for vaccination in Union budget. Thereafter, the Court further concluded in paragraph 31 that the higher rates of procurement of vaccines for the States, in comparison to lower rate for the Centre, would result in State Governments being put under extra burden. Moving further, the Court took into account the mandatory requirement of registration through CoWIN App and adjudged the same to be discriminatory in view of digital divide, particularly in small towns and rural areas. And finally, the Court issued final direction in paragraph 41 directing the Central Government to furnish all the data in respect of its vaccination policy.

The suo motu intervention by the Supreme Court has underscored the instrumental value of the judicial review in eliciting the crucial information from the Government and putting the same into public domain. Making policy announcement through spokesman of the government cannot be as effective as statement by Minister on the Floor of the House and making an averment on sworn affidavit before the Court. If the Minister makes a wrong statement on the floor of the House, he may be accused of breaching the privilege of the House. By the same token, making a wrong averment in affidavit before the Court exposes the official to be proceeded against for committing the offence of perjury, apart from exposing him to the charge of contempt of the Court.

The Modi Government messed up its vaccination policy right from the beginning. It failed to place the order well in advance. The government started vaccination process on 16th January, 2021 with vaccination of frontline workers and gradually extended it to the 60+ population . The moment the government announced the next phase of vaccination for age group of 45-59 years, State governments and opposition leaders started clamouring for free vaccination for the entire adult population. The central government knew it very well that it was not possible for the State governments to procure vaccines on their own, particularly from Pharmaceutical companies operating from outside India. The State governments and opposition leaders thus fell into trap. Despite knowing this handicap of States very well, the Central Government, on its part, far from acting in principled manner, indulged in political one-upmanship and announced its vaccination policy for the age group of 18 to 44 by creating three classifications of Central Government, State Governments and Private Hospitals and Nursing Homes. The rate of procurement was discriminatory between Central Government and State Governments. Under this differential treatment, State Governments had hardly any resources to procure large scale vaccines at higher price and the result was the vaccination centres in states shut down for age group of 18-44 . So far as private sectors were concerned, the social darwinism resulting in poor being priced out became ugly and unethical reality.

The arrant nature of arbitrariness with inherent discrimination was writ large on the very face of vaccination policy. The US, which is bastion of capitalism and has rigid federal system, the Federal Government procured entire vaccines and vaccinated its population free of costs, whereas in India, which is union of States, left the States, and by extension, the poor population into lurch, as observed by the Supreme Court in its order dated 31st May, 2021.

Once the Apex judiciary started interrogating the vaccination policy, the central government had no option but to get itself rid of embarrassing situation created by its own bungled vaccination policy. This is a cathartic moment for nudging jurisprudence of the highest court of the land. The apex judiciary has risen to the challenge of extraordinary time and performed the crucial democratic task of check and balance---- a function vital for survival of democracy. Be that as it may, the Supreme Court, which had abdicated its Constitutional duty at the time of mass exodus of migrants last year, has lived up to the role of acting as a sentinel on the qui vive. Given the enormity of tragedy, and Modi Govt increasing fixation with coming U.P. election, the exercise of “continuing mandamus” has become compelling necessity.

(Vijay Kumar is Advocate, Supreme Court of India)

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