Coronavirus and the Constitution – XXXVII: Dialogic Review and the Supreme Court (2)

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].

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[Update: On 7th June, the central government announced that starting from the 21st of the month, 75% of the vaccines quota would be centrally procured, that vaccination would be free for over-18s, and that private hospitals would not be permitted to charge more than an administrative fee of Rs. 150. Many of the elements in this new policy come on the back of the Supreme Court’s 31st May order (discussed below) that had, inter alia, returned a prima facie finding that the procurement and pricing policy, as it then stood, was arbitrary and irrational. While it is, of course, an impossible errand to quantify how much of the policy volte face was because of the Supreme Court’s intervention, it is nonetheless fair to say that the Supreme Court’s three orders on 27th April, 30th April, and 31st May have played a significant role, and vindicate the Court’s bounded-dialogic approach towards the exercise of judicial review over the management of the pandemic.]

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The 31st May order of the Supreme Court in In Re: Distribution of Essential Supplies and Services During Pandemic is the third substantive order of the Court’s three-judge bench since it took suo motu cognisance of various issues relating to the management of Covid-19. It follows orders on 27th April (that laid out the scope of the Court’s deliberations, discussed here), and 30th April (that laid out a set of directions, recommendations and questions to the government).

The 31st May order limits itself to the issue of vaccinations, in view of the gradual recession of the second wave. In particular, it focuses on the constitutionality of several features of the central government’s Liberalised Vaccination Policy. Recall that according to the Liberalised Vaccination Policy, vaccination manufacturers are required to supply 50% of their doses to the central government, and 50% (with an even split, i.e. 25% each) to state governments and private hospitals (at a pre-declared price). Central government vaccination centres are limited to vaccinating healthcare workers, frontline workers, and people above the age of 45, while individuals between the ages of 18 – 44 must be vaccinated at state government centres, or in private hospitals. Vaccination appointments are to be booked digitally, via the CoWIN app.

In paragraph 19 of the Order, the Court groups its observations under three heads: vaccine distribution between different age-groups, the vaccine procurement process, and the augmentation of vaccine availability. For further ease of analysis, the Court’s observations under each of these heads can be divided into three categories: directions for further information from the central government [“queries”], recommendations [“recommendations”], and findings of prima facie unconstitutionality, requiring a response from the government [“objections”].

With respect to the vaccine distribution between different age-groups, the Order finds that free vaccinations for over-45s and frontline/healthcare workers on the one hand (through the central government channel), and paid vaccinations for the 18-44s on the other (through the state governments/private hospitals channel) is “prima facie arbitrary and irrational” (para 20) [“objection”]. It is important to note that the question here is not whether the government is allowed to charge for vaccinations or not, but discrimination within the existing policy, where one age-group is asked to pay, and another is not.

With respect to the issues around procurement, the Order asks the government for further information. The Liberalised Vaccination Policy allows state governments to bargain with vaccine manufacturers, ostensibly (and as per the central government’s justification) in order to spur “competitive prices and higher quality [of vaccines].” It was pointed out to the Court, however, that vaccine manufacturers were refusing to negotiate with state governments (inter alia for reasons of guaranteed legal immunity, which state governments cannot provide) – as also the fact that the central government, as a monopoly buyer, would have greater bargaining power to drive down prices rather than individual (or even a consortium of) state governments. The Court also notes that, under the Liberalised Vaccination Policy, the basis of pro rata allocation to state governments is both unclear (with respect to the extent of the central government’s intervention) and incomplete (failing to take into account inter-state migration, healthcare infrastructure, demographics etc). It therefore asks the central government to “specify whether it seeks to address these concerns within the vaccination policy such that the State/UT Governments have a realistic assessment of the assistance they can anticipate from the UoI.” (paragraph 22) In a later part of the judgment, the Court goes on to add that the very reason that the central government is able to bargain for lower prices raises the question of why it cannot procure 100% of the vaccine doses; on that basis, the Court asks the government to clarify how the allocated budget of Rs. 35,000 crores for vaccinations “ha[s] been spent so far and why [it] cannot be utilized for vaccinating persons aged 18-44 years.” (paragraphs 30–31)

With respect to vaccination availability, in view of the central government’s recent declaration that 100 crore people would be vaccinated by December 2021, the Order asks the government to place on record its detailed roadmap explaining how this will be achieved (paragraph 23) [“query”], including information on the (future) vaccination of children, the status of crematorium workers, mechanisms for redistribution in case of a mismatch between the 50:50 distribution and the actual orders placed by a state government/private hospitals (paragraph 24).

In the next section of its order, the Court turns to the specifics of the 25% vaccination disbursal to private hospitals. The ostensible logic of this – as per the central government – is that there exists a certain section of society that is able to pay for vaccinations, which will be diverted towards private hospitals. As the order notes, however, the structure of the vaccination policy is such that this may not actually happen. As the Court notes:

However, the present system of allowing only digital registration and booking of appointment on CoWIN, coupled with the current scarcity of vaccines, will ultimately ensure that initially all vaccines, whether free or paid, are first availed by the economically privileged sections of the society. As such, even those who may have been able to afford a vaccine, may opt for a free vaccine simply because of issues of availability, even if it would entail travelling to far-flung rural areas. Hence, any calculations of the economic ability of a given individual may not directly correspond to the vaccination route (paid/unpaid) they opt for. Consequently, it is plausible that private hospitals may have vaccine doses left over with them because everyone who could afford them has either already bought it or availed of a free vaccine, while those who need it may not have the ability to pay for it. (paragraph 26)

Because of this – coupled with the profit-making character of private hospitals creating the possibility of price-gouging, the order asks the government to provide a set of clarifications about the manner of disbursal of vaccines to private hospitals, regulatory oversight, and means-testing (if any) (paragraph 28).

In the third sub-section, the Court goes on to consider the issue of differential pricing. A part of it has been discussed above; in addition, given the central government’s financial and regulatory contribution to the development of the vaccine, the Order asks for further clarifications regarding the basis of pricing, the central government’s refusal to intervene statutorily, and whether any contracts have been invited for voluntary licensing (paragraph 33). The Order concludes with some further questions on cold storage facilities and the use of the CoWIN app.

There is little doubt that when it comes to judicial scrutiny of the management of the Covid-19 pandemic, the Court must proceed with caution. The purpose of a bounded-deliberative approach – which is how the Court has described its proceedings thus far – is to elicit information from the government – which may otherwise not be available – that forms the basis of policy. While the merits of the policy, of course, are not subject to judicial review, the purpose of dialogic review is to (a) gauge, on the basis of the information provided, whether the policy is sufficiently backed by reason, to pass constitutional scrutiny; (b) whether, in response to judicial nudges, the political executive tweaks or modifies policy in order to make it constitutionally compliant; and (c) if the answer to both (a) and (b) is negative, then – in the last resort – to invalidate those parts of the policy that violate constitutional rights (in this case, the rights to equality and health). The court’s orders so far have fallen within the first phase of dialogic review, and justifiably so (and on some respects, such as hospital admissions, have resulted in policy changes, moving into phase 2). The question now, no doubt, will be whether the central government’s responses – due in two weeks’ time – will see the proceedings move into phases 2 and 3. In this respect, it is important to note an observation made in this order: that, while at the beginning of the pandemic, the political executive is to be provided maximum leeway and “play in the joints”, given the overall uncertainty, as time progresses – and as more information becomes available – the actions of the executive are to be held to stricter account on the touchstone of constitutional rights. As we are now into the second year of the pandemic, and a few months into the second wave, it remains to be seen what form this stricter judicial review will take in future hearings.