India, High Court of Kerala, 18 May 2022, No. 10661 of 2021
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
- Vaccination
- Use of protection devices
- Health and freedom of association/public gathering/religion
Outcome of the decision
Link to the full text of the decision
General Summary
This public interest writ petition was filed by petitioners seeking the following relief: to set aside Liberalized Pricing and Accelerated National Covid-19 Vaccination strategy to the extent that it provided for: differential pricing between Central and State Governments, the appropriate authority to procure and distribute vaccines to the State Governments free of cost to all age groups, technology transfer of manufacturing Covaxin along with cell lines to all manufacturers interested and capable of manufacturing the vaccine, establishing a price ceiling for vaccines for Covid -19 etc. Applying the principle of a separation of power, the intellectual property rights of pharmaceutical companies, and that the government has implemented vaccine policy and pricing considerably and substantially to the common advantage of the citizens of the country, which was also a policy adopted by the respective Governments in the larger public interest, as well as taking into account the fundamental duties and obligations guaranteed to the citizens under part III of the Constitution of India, all relief claimed within the writ petition was accordingly dismissed.
Facts of the case
There were a total of 8 respondents in the case and the basic contention advanced in the writ petition was with respect to the pricing policy adopted by the Government for the distribution and administration of "Covishield and covaxin" vaccines through public and private medical institutions. According to the petitioners, the prices announced by the Serum Institute of India Private Limited and Bharat Biotech International Limited were in response to the new strategy and pricing. The Serum Institute announced a Covishield price of Rs. 400 for State governments and Rs. 600 for private hospitals. Bharat Biotech announced that Covaxin would be available at a price of Rs. 600 per dose for state governments and Rs. 1,200 per dose for private hospitals. It also stated that Covaxin would be exported at a price between $15-20 (Rs. 1,123 to Rs. 1,498 approximately). On the other hand, the Central Government could procure the vaccine at Rs. 150." Thus, according to the petitioners, the three-tier pricing model announced by the Union Government and then implemented by the Serum Institute of India Private Limited and Bharat Biotech International Limited went against the principles of universal vaccination. It was the case of petitioners that vaccination had always been universally led by the Union Government and provided free of cost in India; the Union Government should procure all vaccines and then give them freely to States for administration and there should be no exception to this.
Type of measure challenged
Measures, actions, remedies claimed
- An order setting aside Liberalized Pricing and the Accelerated National Covid-19 Vaccination strategy to the extent that it provided for differential pricing between Central and State Governments
- An order directing the 1st respondent to procure and distribute vaccines to the State Governments free of cost to all age groups
- An order directing the respondent Union Government to transfer the manufacturing technology of Covaxin along with cell lines to all manufacturers interested and capable of manufacturing the vaccine
- An order directing Respondents of the Union Government to fix a price ceiling for vaccines for Covid-19
- An order of mandamus to the Respondent Union Government to expedite vaccine acquisition from all available national and international resources
- The issuance of a writ of mandamus to the Respondent to grant emergency use authorization for all available vaccines including but not limited to those developed by Pfizer-BioNtech, Moderna, Inc. and Johnson & Johnson
- To issue a writ of mandamus to the Respondent to publish and make public all the agreements and information pertaining to the arrangement
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private collectiveDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Union, as well as the State Governments, issued successive notifications under the provisions of the Disaster Management Act, 2005. Taking into account the population of India, various programs were launched to ensure that the vaccine be administered to all in order to generate immunity by vaccination. In that process, the Serum Institute of India Private Limited as well as the Bharat Biotech International Limited were chosen by the Union Government to develop the vaccines. It may be true that the Union Government advanced money in order to develop the vaccine at a faster pace in the larger interest of the public. It was an admitted fact that the vaccine was developed by the Serum Institute of India Private Limited as well as the Bharat Biotech International Limited by using their technology, scientific expertise, and other technological aspects. In the considered opinion of the Court, the Union of India did not enter into any agreement with the Bharat Biotech International limited to transfer their technology with regard to the manufacture of Covaxin. By virtue of the provisions of the statutes remaining in the country, the company was entitled to protect their Intellectual Property. According to the petitioners, though India communicated to the World Trade Organization for liberalizing the provisions of the law relating to Intellectual Property Rights, the World Trade Organization did not take any steps as per the request made by India as well as South Africa. Moreover, the steps taken by the Government of India with regard to the manufacture of vaccines by entering into terms with M/s. Bharat Biotech International Limited, and for administering the same to the public using the available public as well as private infrastructure, was a policy developed by the Union Government to protect the interest of the large population of the country.
The Court considered that the factual and legal aspects deliberated upon and held that they were not inclined to interfere with the policy decisions made by the Union Government by invoking the writ jurisdiction. Ultimately these were all aspects to be considered by the Government in terms of the directions issued by the Apex Court. It also held that it was a settled cannon of law that the Government has the authority and power not only to frame its policies, but also to change the same. The power of the Government, regarding how the policy should be shaped or implemented and what should be its scope, is very wide, so long as it was not arbitrary or unreasonable. In other words, the State may formulate or reformulate its policies to attain its obligations of governance or to achieve its objectives, though the freedom so granted is subject to basic constitutional limitations.
Conclusions of the deciding body
The court rejected the claims and held that the petitioners were not entitled to secure any order of mandamus for a technology transfer to manufacture Covaxin or have the details of the Intellectual Property of the vaccines published. The other forms of relief sought by the petitioners were virtually infructuous as a consequence of the policy adopted by the Union as well as the State Governments for price fixing and administration of the vaccine to the citizenry, and implemented the same considerably and substantially to the common advantage of the citizens of the country, which was also a policy adopted by the respective Governments in the larger public interest, taking into account the fundamental duties and obligations guaranteed to the citizens under part III of the Constitution of India. Therefore, the relief sought by the petitioners was liable to be dismissed, which the Court did accordingly. Assimilating the facts and circumstances and the law mentioned above, the Court did not think the petitioners were entitled to any relief and the writ petition was accordingly dismissed.
Fundamental Right(s) involved
- Right to an effective remedy
- Right to health (inc. right to vaccination, right to access to reproductive health)
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health (public) v. access to health services
General principle applied
- Reasonableness
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
The Court expressed that it was not inclined to interfere with the policy decisions made by the union government and tried to balance the right to health with that of the policy decision of the government during the pandemic. The Court also stated that the policy adopted by the respective Governments were in the larger public interest, taking into account the fundamental duties and obligations guaranteed to citizens under part III of the Constitution of India.
