[Editor’s Note: The Central Government revised its policy on 7th May 2021 wherein the Prime Minister announced that the Central Government will procure the vaccines on behalf of the States (75% of the vaccines) and it will be free for everyone above 18 years of age. The change in the policy came after the Supreme Court’s 31st May order*.]
In mid-January 2020, the Government of India planned the vaccination drive in different phases; for example, in the first phase of the vaccination drive the focus was on the Front-line workers (doctors, paramedics, etc.) as they are at higher risk. The second phase of vaccination was further divided into two parts, firstly, to all the individuals above 60 years of age and then everyone above 45 years of age. Then, in the beginning of May, that is, in the third phase, the Government has allowed everyone above 18 years of age to get vaccinated. As India marked the beginning of its third phase of vaccination, the country is facing a huge vaccine shortage (it has been reported here, here and here and in various other news channels and reports). To tackle this shortage the central government asked the states to float the global tender. But the question arises is it the State Government’s responsibility to enter into foreign trade, or is it a central government duty to import the vaccines and distribute them among the states?
The Federal Structure
Dr. B.R. Ambedkar said in the Constituent Assembly: “The Indian Constitution is a federal Constitution in as much as it established what may be called a dual polity which will consist of the Union at the Centre and the States at the periphery each endowed with sovereign powers to be exercised in the field assigned to them respectively by the Constitution”.
SCHEDULE VII of the Indian Constitution defines and specifies allocation of powers and functions between Union & States. It contains three lists; i.e. 1) Union List, 2) State List and 3) Concurrent List. The constitutional provisions in India on the subject of distribution of legislative powers between the Union and the States are defined under several provisions; the most important in this regard being specifically under articles 245 & 246 of the Constitution of India.
While presenting the union budget for the year 2021-22 the government had allotted 35 thousand crores for the vaccination program in India. Why isn’t that money being used to purchase the vaccines? The VII Schedule of the constitution clearly specifies that foreign trade is a matter of Union List. Then why the State Governments have been asked to procure vaccines for their respective states themselves. In such time of crisis the Union Government is supposed to play a big role in Centre-state relation and should work with the state government to ensure the safety of all its citizens, but it seems like that the Union Government is trying to run away from their responsibilities by asking the States Government to procure the vaccine for the people of their states. Many states like Uttar Pradesh, Madhya Pradesh, Delhi, and Maharashtra which are the worst affected states are trying to get vaccines through the global tender but no one succeeded. Many companies like Pfizer had already announced that they will sell only to the Central Government and not to the State Governments.
Judicial Review and the Supreme Court
The three-judge bench of Justices D. Y. Chandrachud, L. Nageswara Rao and Ravindra Bhat was hearing the suo moto case on COVID issues (In Re Distribution of Essential Services and Supplies During Pandemic), the bench had made a prima facie observation that the Centre’s vaccination was detrimental to the Right to Health of Citizens and required a revisit to make it conform to the mandate of Articles 14 and 21 of the Constitution.
“I was reading the Constitution. Article 1 says that Bharat is a Union of States. When the Constitution says that, then we follow the federal rule. Then the Government of India has to procure the vaccines and distribute them. Individual States are left in a lurch” said Justice Chandrachud.
"We need something like 226 crore doses of vaccine because it is a double dose. You will need to make it available to the nation as a whole. But the only thing we would like to express is the dual pricing policy and the dual procurement. We are trying to understand why you are asking states to fight to pick up the vaccine against each other", said Justice Bhat.
The bench also opined that Right to Health is a fundamental right under Article 21 of the Constitution and the Government is duty bound to ensure that every person who wants to get the vaccine can get it. Failing will amount to infringement of Fundamental Rights.
“The Constitution of India is not truly Federal in character. The basis of the distribution of powers between the Union and States is that only those powers which are concerned with the regulation of local problems are vested in the States and the residue, especially those which tend to maintain the economic industrial and commercial unity of the country are left to the Union”, said the Supreme Court of India in State of West Bengal v. Union of India. It won’t be wrong to say that the Covid-19 pandemic imposes a serious threat to the integrity of the nation. More than three lakh people had lost their lives. The National Commission for Protection of Child Rights (NCPCR) has informed the Supreme Court that the COVID-19 pandemic has orphaned 1742 children, and 7464 children lost at least one parent during the pandemic.The second wave of covid-19 exposes the reality of the healthcare system in India. Researchers in the country are saying that a third wave is inevitable. Government needs to understand that vaccines are the only saviour now. The Constitution of India says that the Central Government has an important role to play in the centre-state relationship and the Supreme Court has reiterated that view time and again. This is the high time that the central government should step-up and take the responsibility upon them. Instead of imposing the duty on the States the Central Government should float the global tender for vaccines and then distribute it to the states.
This is a guest post by Ravi Prakash Singh. He is a fourth year law student at Amity Law School Delhi (Affiliated to GGSIPU). You may contact him here.
* The Supreme Court’s 31st May Order has been analysed here on Gautam Bhatia’s Blog here.