Centre Evades SC’s Tough COVID Questions – Hearing After Hearing

Even after a month, the Centre continues to give evasive replies to the SC’s tough questions on vaccination policy.

Solicitor General Tushar Mehta continues to give evasive replies to tough questions asked by the Supreme Court on vaccination policy. But why?

(Photo: Aroop Mishra/The Quint)

On 30 April, the ‘COVID-19 Bench’ of the Supreme Court observed that the Central government’s vaccination policy is “prima facie detrimental to the right to health” and was violative of Articles 14 and 21 of the Constitution.

The apex court, in that order, had issued a series of suggestions to the Central government to revise its vaccination policy. A number of tough questions on procurement, manufacturing, and distribution of vaccines were also asked. Tasked with defending the Central government’s lack of preparedness before the court, it is Solicitor General Tushar Mehta who faces the wrath of these questions.

However, a month later, the Supreme Court is yet to receive cogent answers for the tough questions it had posed on vaccination. When the same questions were reiterated on 31 May, the Centre replied with a bunch of shallow assurances, which created more doubts than dispelling them.

Question: Why Differential Pricing?

The Supreme Court has consistently maintained that differential pricing for the same vaccine goes against the constitutional protection of equality. In its order dated 30 April, the court had categorically stated that it sees no rationale in making states fetch vaccines in the open market when the Centre is getting the same at subsidised rates.

In the recent hearing as well, the Supreme Court posed the same question to the Central government: “Whether 50 per cent of the population in the 18-44 age group would even be able to afford the vaccines?”

“The Central government has to procure the vaccine and distribute it. Individual states can’t be left in a lurch. What is the vaccine policy of India? Do you (central government) treat yourself as one national agency and procure for the states or have the states been left on their own?”

Supreme Court

However, the central government failed to answer the direct query of the Supreme Court with a conclusive answer.

Solicitor General Tushar Mehta simply said: “We will submit the details in an affidavit.” He further pointed out that “policy is not cast in stone” and the Centre “will try to be flexible”.

The Solicitor General completely failed to satisfy the court on the most basic questions on the vaccination policy. Instead of answering why such a policy is not unconstitutional or will not pose a financial burden on certain sections of the society, the Solicitor General took recourse to an ambiguous phrase: “we will be flexible”.

This “we-will-be-flexible” approach is evasive, confusing, and shrouded in secrecy. What would this “flexibility” entail? Does it mean that the Centre is willing to roll-back dual procurement or differential pricing or will there be exceptions carved out in the existing policy? Or does it point towards further strengthening of the Centre’s “discretionary decision-making”, which would make the entire process even more arbitrary.

Question 2: Why Mandatory Registration Through CoWIN App?

Another major question in the Supreme Court’s consistent critique of the Centre’s vaccination policy is about the mandatory requirement for registration through the CoWIN app to get a vaccination slot.

The apex court is concerned about how this would affect those who are already marginalised by the “digital divide” in India.

You keep saying digital India, digital India, but you are not aware of ground realities... You can certainly have registration, but how will you answer the digital divide? How do you answer the questions of digital divide? How do you answer the question about migrant labourers who go from one state to another?

Supreme Court

The court was not at all satisfied with the Centre’s earlier affidavit which had said that people in the villages can take help from service centres, friends, or NGOs to get registered for a vaccination slot. Therefore, pointed questions were asked during the 31 May hearing – on the digital divide, citing how even people in the cities are also finding it really difficult to find a slot. However, the court received yet another blank and mechanical response from the Solicitor General.

Tushar Mehta’s response on access to vaccines was: “We will file a new affidavit”. This response sounds meaningless considering how the Centre’s last affidavit failed to generate any confidence with the court, and forced it to ask these questions yet again. The Solicitor General’s reply did not say a single word on why the mandatory registration requirement is not adversely impacting those left out by the digital divide.

'We Want To See The Actual Files'

The lack of convincing answers from the Centre has led to a trust deficit. The court is no longer letting the Centre go by just filing an affidavit. It is categorically asking for the actual policy documents and internal files to be placed on record. The court wants to examine the very rationale of the Central government in framing a prima facie discriminatory vaccination policy.

Till date we have not seen the policy document which articulates this (dual procurement). We want to see the files. We want to know the rationale. To say that Centre will procure at a lesser price, and manufacturers are free to fix prices at their own whim... we want to know the rationale. We want to see the files to know why the pricing for the 50 percent of the vaccines is left to manufacturers.

Supreme Court

Lawyer and writer Chitranshul Sinha told The Quint that the Centre may have the answers, but surely didn’t appear to want to answer clearly.

That’s why, Sinha believes, the court has asked them for the official policy documents instead of just filing affidavits where bureaucrats explain what the policy is.

However, amidst all the fire and the fury, the Supreme Court is yet to take a coercive step against the Central government for its continued evasion of the “tough questions”.

Even on 31 May, we saw no serious action being taken despite harsh commentary from all the judges presiding over the COVID-19 bench. Instead, the Central government got a couple of weeks time more to file yet another affidavit.