SFLC.in has assisted in the filing of a writ petition challenging the Liberalised Pricing and Accelerated National COVID-19 Vaccination Strategy before the Kerala High Court on the 27th April, 2021. The matter came up before the vacation bench of Justices Ashok Menon and Murali Purushothaman. A notice has been issued to the respondents in this matter. The petition has been filed by Dr K P Aravindan, a member of the expert panel on COVID-19 constituted by the Government of Kerala and Dr. Praveen G Pai, a Public Health Specialist. The petition was moved by the petitioners after the Liberalised Pricing and Accelerated National COVID-19 Vaccination Policy opened vaccinations for citizens between 18-45 years of age from 1st May, 2021.
The liberalised pricing policy has allowed a multi-track procurement process and a differential vaccine pricing mechanism where vaccines will be supplied by the two Vaccine Manufacturers, Serum Institute of India (SII) as well as Bharat Biotech to the Center, the States and private hospitals. The vaccine is currently priced at Rs. 250 for private hospitals inclusive of administrative cost of Rs. 100. The state Governments get the vaccine free of cost from the Centre. The Vaccination strategy has removed the price cap of Rs. 250 and has also made states to compete with each other and the private sector for the 50 % what remains after procurement by the centre. Moreover the Serum Institute of India which manufactures CoviShield has said that it will supply the Vaccine at a rate of Rs. 400 per vaccine to State Governments and Rs. 600 to private hospitals. Bharat Biotech which sells Covaxin will sell the vaccine at Rs. 600 for State Governments and Rs. 1200 for Private Hospitals. Both vaccines will be available for Rs. 150 to the Central Government. Prior to this policy, ALL vaccines were being procured by the Central Government at a rate of Rs 150 per vaccine. It has been widely accepted by the scientific community worldwide that vaccination is the only way to control the spread of COVID-19 and to minimize mortality from infections.
The writ petition was moved on the following grounds, among others:
(i) The decision to allow vaccine companies to have a three tier price structure with differential pricing for the central and state governments will result in low coverage of the targeted population thereby putting at risk the entire population of India. This will consequently lead to a violation of Right to health and right to life.
(ii) Charging for vaccines for the 18-45 age group amounts to an unreasonable classification and is arbitrary
(iii) The vaccines ought to fall under the National Essential Medicines list which is a list of essential drugs that have their prices capped. The prices of the vaccines can also be capped keeping in mind the provisions of the The Drugs (Prices Control) Order, 2013
(iv)The cost of the Vaccine in India is the highest in the world. The Oxford AstraZeneca Vaccine being manufactured by the Serum Institute of India is a publicly funded vaccine and charging an exorbitant price is unjustifiable and mere profiteering.
(v)The Government should take steps to ensure that more manufacturers should be given access to the technology and the vaccines reach the target population as quickly as possible. The government in its capacity as the giver and protector of intellectual property rights, has an inherent power to allocate intellectual property rights for the fulfilment of a public purpose, which in this case is the imminent and necessary task of universal immunization of the citizens of India. There are at least 19 capable vaccine manufacturers as listed in the National Health Profile, 2019
(VI)The writ petition greatly emphasizes on Open Access, Open knowledge and the Open COVID Pledge. The Open COVID pledge is an initiative through which multiple businesses, researcher’s, academics, lawyers have come together to pledge that their Intellectual property can be used free of charge to solve the COVID 19 pandemic and minimize the impact of the pandemic. This was in the spirit of “Open Science” and “Open Source Software”. Some of the founding adopters of the pledge are companies like Facebook, Amazon, IBM, Intel, Microsoft, Hewlett Packard Enterprises among others. The government should share its intellectual property in COVAXIN for the fight against COVID-19,enable technology transfer and capacity building, to facilitate rapid development and dissemination of the vaccine to the public both in India and abroad.
(VII) India along with South Africa had filed a request to the World Trade Organization on October 2, 2020 requestinga waiver of provisions related to patents and trade secrets for the Vaccines to help prevent, contain and treat COVID-19 pandemic. In light of this petition, it is obligatory for the Government to apply the same principles at home with respect to Technology under their control. The decision on this petition remains inconclusive in light of resistance from U.S. and European companies.
Lawyers from SFLC.in:, Mishi Choudhary, Prasanth Sugathan, Apurva Singh, Radhika Jhalani and Kushagra Sinha as well as Varsha Bhaskar appeared for the petitioner. A copy of the petition is attached.
We would like to thank Mr. K.M GopaKumar, Mr. Murali Neelakantan and Mr. Arul Scaria for thier support and guidance.