# [2021] 5 S.C.R. 268 - **Citation:** [2021] 5 S.C.R. 268 - **Court:** Supreme Court of India - **Decided:** 2021-05-31 - **Bench:** Dr. Dhananjaya Y Chandrachud, L Nageswara Rao, S Ravindra Bhat - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2021-5-s-c-r-268-35315 - **Pages:** 37 ## Headnote COVID-19 pandemic: Suo Motu writ petition - Cognizance of the Management of the Covid -19 pandemic during the second wave -Gradual recession of the second wave - In view thereof, issues as regards Central Government's Liberalised Vaccination Policy, vaccine distribution, vaccine procurement process, and the augmentation of vaccine availability, taken up - With respect to the vaccine distribution between different age-groups, the policy of the Central Government conducting free vaccinations for persons above age of 45 years and frontline/healthcare workers, and paid vaccinations by the State/ UT Governments and private hospitals for persons between 18-44 years, prima facie arbitrary and irrational - With regard to procurement process, the Liberalised Vaccination Policy, may not be able to yield the desired results, and the basis of pro rata allocation to State Governments also not clear, thus, Central Government to specify as to how they would deal with the concern - As regards augmentation of vaccine production/availability, Union of India to undertake a fresh review of its vaccination policy - In view thereof, issuance of direction to Union of India to file affidavit addressing the issues with regard to the vaccination policy: vaccine procurement and distribution among different categories of the population, effects of vaccination by private hospitals under the liberalized vaccination policy, basis and impact of differential pricing, vaccine logistics, digital divide - Affidavit to provide information on the percentage of population that has been vaccinated with one dose and both doses; complete data on purchase of COVID-19 vaccines till date (Covaxin, Covishield and Sputnik V), and an outline for vaccinating the remaining population in phases 1, 2 and 3; and the steps taken by the Central Government to ensure availability of drug for mucormycosis - Further, direction to Union of India to attach copies of relevant papers and file notations perused while preparing A B C D E F G H 269 vaccination policy - Also, the State/UT governments to clarify their position and policies as regards providing free vaccination to the population within their territories. Judicial review - Exercise of, over the management of the COVID-19 pandemic - Held: Policy-making continues to be in the sole domain of the executive - However, separation of powers does not result in courts lacking jurisdiction in conducting a judicial review of these policies - Constitution does not envisage courts to be silent spectators when constitutional rights of citizens are infringed by executive policies - Judicial review and soliciting constitutional justification for policies formulated by the executive is an essential function, which the courts are entrusted to perform - Judiciary has also recognized that constitutional scrutiny is transformed during such public health emergencies - In grappling with the second wave of the pandemic, this Court does not intend to second-guess the wisdom of the executive - However, it continues to exercise jurisdiction to determine if the chosen policy measure conforms to the standards of reasonableness, militates against manifest arbitrariness and protects the right to life of all persons - Court is presently assuming a dialogic jurisdiction - Hence, the Court would, under the auspices of an open court judicial process, conduct deliberations with the executive where justifications for existing policies would be elicited and evaluated to assess whether they survive constitutional scrutiny. Union of India vs Rakesh Malhotra and another SLP (Civil) (Diary) No 11622 of 2021; DDA v. Joint Action Committee (2008) 2 SCC 672 : [2007] 13 SCR 811; Gujarat Mazdoor Sabha v. State of Gujarat AIR 2020 SC 4601 - referred to. Jacobson v. Massachusetts 197 U.S. 11 (1905); Roman Catholic Diocese of Brooklyn, New York v. Cuomo, 592 U.S., 141 S. Ct. 63; Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada, et al, 140 S.Ct. 2603 - referred ## Text _Characters 0–39,714 of 80,127. This is a partial read: ask again with offset=39714 for what follows._ A B C D E F G H 268 SUPREME COURT REPORTS [2021] 5 S.C.R. [2021] 5 S.C.R. 268 268 IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC (Suo Motu Writ Petition (Civil) No. 3 of 2021) MAY 31, 2021 [DR. DHANANJAYA Y CHANDRACHUD, L NAGESWARA RAO AND S RAVINDRA BHAT, JJ.] COVID-19 pandemic: Suo Motu writ petition - Cognizance of the Management of the Covid -19 pandemic during the second wave -Gradual recession of the second wave - In view thereof, issues as regards Central Government's Liberalised Vaccination Policy, vaccine distribution, vaccine procurement process, and the augmentation of vaccine availability, taken up - With respect to the vaccine distribution between different age-groups, the policy of the Central Government conducting free vaccinations for persons above age of 45 years and frontline/healthcare workers, and paid vaccinations by the State/ UT Governments and private hospitals for persons between 18-44 years, prima facie arbitrary and irrational - With regard to procurement process, the Liberalised Vaccination Policy, may not be able to yield the desired results, and the basis of pro rata allocation to State Governments also not clear, thus, Central Government to specify as to how they would deal with the concern - As regards augmentation of vaccine production/availability, Union of India to undertake a fresh review of its vaccination policy - In view thereof, issuance of direction to Union of India to file affidavit addressing the issues with regard to the vaccination policy: vaccine procurement and distribution among different categories of the population, effects of vaccination by private hospitals under the liberalized vaccination policy, basis and impact of differential pricing, vaccine logistics, digital divide - Affidavit to provide information on the percentage of population that has been vaccinated with one dose and both doses; complete data on purchase of COVID-19 vaccines till date (Covaxin, Covishield and Sputnik V), and an outline for vaccinating the remaining population in phases 1, 2 and 3; and the steps taken by the Central Government to ensure availability of drug for mucormycosis - Further, direction to Union of India to attach copies of relevant papers and file notations perused while preparing A B C D E F G H 269 vaccination policy - Also, the State/UT governments to clarify their position and policies as regards providing free vaccination to the population within their territories. Judicial review - Exercise of, over the management of the COVID-19 pandemic - Held: Policy-making continues to be in the sole domain of the executive - However, separation of powers does not result in courts lacking jurisdiction in conducting a judicial review of these policies - Constitution does not envisage courts to be silent spectators when constitutional rights of citizens are infringed by executive policies - Judicial review and soliciting constitutional justification for policies formulated by the executive is an essential function, which the courts are entrusted to perform - Judiciary has also recognized that constitutional scrutiny is transformed during such public health emergencies - In grappling with the second wave of the pandemic, this Court does not intend to second-guess the wisdom of the executive - However, it continues to exercise jurisdiction to determine if the chosen policy measure conforms to the standards of reasonableness, militates against manifest arbitrariness and protects the right to life of all persons - Court is presently assuming a dialogic jurisdiction - Hence, the Court would, under the auspices of an open court judicial process, conduct deliberations with the executive where justifications for existing policies would be elicited and evaluated to assess whether they survive constitutional scrutiny. Union of India vs Rakesh Malhotra and another SLP (Civil) (Diary) No 11622 of 2021; DDA v. Joint Action Committee (2008) 2 SCC 672 : [2007] 13 SCR 811; Gujarat Mazdoor Sabha v. State of Gujarat AIR 2020 SC 4601 - referred to. Jacobson v. Massachusetts 197 U.S. 11 (1905); Roman Catholic Diocese of Brooklyn, New York v. Cuomo, 592 U.S., 141 S. Ct. 63; Calvary Chapel Dayton Valley v. Steve Sisolak, Governor of Nevada, et al, 140 S.Ct. 2603 - referred to. Sandra Fredman, "Adjudication as Accountability: A Deliberative Approach" in Nicholas Bamforth and Peter Leyland (eds), Accountability in the Contemporary IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC A B C D E F G H 270 SUPREME COURT REPORTS [2021] 5 S.C.R. Constitution (Oxford University Press, 2013) - referred to. < h t t p s : / / w w w . m o h f w . g o v . i n / p d f / GuidancedocCOWIN2.pdf>; ; ; < h t t p s : / / w w w . m o h f w . g o v . i n / p d f / LiberalisedPricingandAcceleratedNationalCovid19VaccinationStrategy 2042021.pdf.; ; ; - referred to. Case Law Reference [2007] 13 SCR 811 Referred to Para 14 AIR 2020 SC 4601 Referred to Para 16 CIVIL ORIGINAL JURISDICTION : Suo Motu Writ Petition (Civil) No. 3 of 2021. (Under Article 32 of The Constitution of India) Tushar Mehta, SG., Ms. Aishwarya Bhati, K. M. Natraj, Maninder Singh, ASGs., Anil Grover, Sr. AAG., Ms. Prachi Mishra, Arunabh Chowdhury, Krishnaraj Thaker,, Ms. Bansuri Swaraj, Ajay Bansal, AAGs., Amit Kumar Adv. Gen. (Meghalaya), Ashok Parija(Odisha), Vivek Kohli, Advs. Gen.(Sikkim), Rajiv Rangan, Mahendra Singh Singhvi, Ashok Sharma, Atul Nanda, Purushendra Kaurav, Advs. Gen., Sanat Kumar, Dy. Adv. Gen., Jaideep Gupta, Ms. Meenakshi Arora, Ms. Manish Lavkumar, Anand Grover, Ms. Indira Jaising, Sidharth Luthra, S.K. Rungta, Dr. Maneka Guruswamy, Yatin Oza, Dr. Abhishek Manu Singhvi, Bikash Ranjan Bhattacharya, P.S. Patwalia, Manish Tewari, Maninder Singh, C.S. Vaidyanathan, Rahul Mehra, Salman Khurshid, Tarun Gulati, Vikas Singh, Pradeep Kumar Rai, Ms. Mahalakshmi Pavani, Arijit Prasad, Brijender Chahar, Ms. Sonia Mathur, Vikas Pahwa, Dr. Ashwani Kumar, Sr. Advs., Kunal Chatterjee, Mohit D. Ram, Rajat Nair, Kanu A B C D E F G H 271 Agrawal, Digvijay Dam, Amit Sharma, B.V. Balaram Das, Gurmeet Singh Makker, Amit Mahajan, Prashant Singh, Raj Bahadur Yadav, A.P. Mayee, Ms. Rajeshwari Hariharan, R. Sathyanarayanan, Ms. Nupur Kumar, Ms. Mantika Haryani, Ms. Astha Sharma, Nipun Saxena, Paras Nath Singh, Umang Tyagi, Ms. Serena Sharma, Adit S. Pujari, Ms. Kajal Dalal, Simranjeet Singh Rekhi, Sridhar Potaraju, Ms. Petal Chandhok, Gaichangpou Gangmei, M/S. Trust Legal, Avijit Mani Tripathi, Shaurya Sahay, Ms. Rekha Bakshi, Prashant Bhushan, Ms. Cheryl D'souza, Deepak Masih, Ms. Manreet Kaur, R.N. Keswani, Mrs. Ketaki Goswami, Nitin Saluja, Ayush Kaushik, Anjag Gautam, Mahfooz Ahsan Nazki, Polanki Gowtham, Shaik Mohamad Haneef, T. Vijaya Bhaskar Reddy, Amitabh Sinha, K.V. Girish Chowdary, Shrey Sharma, Sumit Pragal, Ms. Amita Singh Kalkal, Vishnu Shankar Jain, Ms. Manju Jetley, Ms. Shobha Gupta, Ms. Medha Garg, Summer Sodhi, Ms. Simran Agarwal, Chaitanya, Anilendra Pandey, Ms. Suchita Dixit, Sandeep, Manish Kumar, Ms. Pragya Baghel, Kumar Anurag Singh, Ms. Pallavi Langar, Govind Manoharan, Ibad Mushtaq, Ms. Aishwarya Murali, Victor Das, Ms. Ambika Mathur, Mrs. Shally Bhasin, Ms. Charu Ambwani, Purvish Jitendra Malkan, Rasesh Parikh, Masoom Shah, Ms. Dharita Purvish Malkan, Ms. Deepa Gorasia, Alok Kumar, Ms. Neha Ambashtha, Ms. Nandini Chhabra, Ms. Bhavna Sarkar, J. Sai Deepak, Guruswamy Nataraj, Ms. Pooja Dhar, V. Shyamohan, Surya Prakash, M/s. Kmnp Law, Amarjit Singh Bedi, Raj Bahadur Yadav, Amit Bhandari, Sandeep Kumar Jha, Abhay Nevagi, Amit Singh, Dhiraj Abraham Philip, Pukhrambam Ramesh Kumar, Ms. Anupama Ngangom, Karun Sharma, Ms. Anindita Mitra, Samim Ahammed, Ms. Supratik Sarkar, Arnab Sinha, Ms. Sayanti Sengupta, Jamir Khan, S.P.M. Tripathi, Ms. Swagoti Batchas, Satish Kumar, Karan Bharihoke, Ms. Neha Sahai Bharihoke, Yajur Bhalla, Deepak Samota, Rohit Kumar Pihal, Ashish Vajpayee, Siddharth Srivastava, Shubham Bhalla, Pashupathi Nath Razdan, Palav Agarwal, Sudhanshu Kaushesh, K.P. Jayaram, Astik Gupta, Ms. Maitrayee Jagat Joshi, Arjun Garg, Aakash Nandolia, Ms. Shrutika Garg, Sunny Choudhary, Pradeep Kumar Yadav, Abhay Singh, Ms. Shikha Yadav, Shreekant Verma, Virender Kumar Mumwalia, Sanjeev Malhotra, Ramesh Babu M. R., Abhay Panday, Ms. Manisha Singh, Varun Singh, K. V. Jagdishvaran, Ms. G. Indira, Saurabh Kansal, Vikas Jain, Aviral Saxena, Ashu Choudhary, Shantanu Kumar, Mohd. Azhar, Manjeet Rathor, Ms. Ruchira Gupta, Shishir Deshpande, Anurag Sharma, Himanshu Chaubey, Shuvodeep Roy, Ms. Diksha Rai, Ms. Ninmisha Menon, Gautam Narayan, IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC A B C D E F G H 272 SUPREME COURT REPORTS [2021] 5 S.C.R. Satyakam, Ms. Asmita Singh, Adithya Nair, Avinash B. Amarnath, G. M. Kawoosa, Ms. Taruna Ardhendumauli Prasad, Parth Awasthi, Ms. Lubna Naaz, Ms. Kunika, Zafar Khurshid, Akhand Pratap Singh Chauhan, Tungesh, Ms. Nupur Kumar, Chirag M. Shroff, Ms. Disha Jham, Ms. B. Vijayalakshmi Menon, Devashish Bharukha, Rajiv Shankar Dvivedi, Niraj Kumar, Mrs. Jaya Bharukha, Ravi Bharuka, Ms. Sarvshree, Justine George, Ms. Shrishti Agarwal, Ankit Agarwal, Ms. Taniya Bansal, Rohit Anil Rathi, Balaji Srinivasan, Ms. Garima Jain, Ms. Pallavi Sengupta, Ms. Lakshmi Rao, Ms. Aishwarya Choudhary, Ms. Aakriti Priya, Mohammed Sharukh, Prateek Yadav, Ankit Goel, Shibashish Misra, Deepak Prakash, Manoj V. George, Ms. Shilpa Liza George, Panmei, Amit Kumar, Sriram P., Ms. Pallavi Pratap, Dr. Monika Gusain, Suhaan Mukerji, Vishal Prasad, Ms. Deepeika Kalia, Nikhil Parikshith, Abhishek Manchanda, Kapish Seth, Mrityanjai Singh, Savandeep Pahari, M/s. PLR Chambers & Co., Annam D. N. Rao, Dr. A. P. Singh, Sadashiv, V. P. Singh, Ms. Geeta Chauhan, Ms. Richa Singh, Sharwan Kumar Goyal, Jai Gopal Saboo, Jaswant Singh Rawat, Meenesh Dubey, Ms. Ritu Bhardwaj, Anupam Mishra, Ms. Nina Gupta, Ms. K.V. Bharathi Upadhyaya, Mukesh Kumar Singh, Ms. Sasmita Tripathy, Prashant Singh, Ms. Prerna Kumari, Ms. Seema Patnaha, Ms. Nandini Gupta, Rahul Kaushik, Sameer Abhyankar, S. Udaya Kumar Sagar, Ms. Sweena Nair, Abhimanyu Tewari, Ms. Eliza Bar, V. N. Raghupathy, Sharath Nambiar, P. Venkat Reddy, Prashant Tyagi, P. Srinivas Reddy, M/S. Venkat Palwai Law Associates, Mrs. K. Enatoli Sema, Amit Kumar Singh, Apratim Animesh Thakur, Ms. Prachi Hasija, Siddhesh Kotwal, Ms. Manya Hasija, Ms. Ana Upadhyay, Nirnimesh Dubey, Gaurav Yadava, Ms. Veena Bansal, Sushil Kumar Anand, Sanjay Kumar Visen, Ms. Raushan Tara Jaswal. Advs. for Appearing Parties. Sachit Jolly, In-person, Devasish Garg, Parvesh Sahib Singh VermaApplicants-in-Person. The following Order of the Court was passed: ORDER This order has been divided into the following sections to facilitate analysis: A Introduction B Submission by Counsel A B C D E F G H 273 C National Vaccination Policy D Separation of Powers E Issues with the Liberalized Vaccination Policy E.1 Vaccine Procurement and Distribution among Different Categories of the Population E.2 Effects of Vaccination by Private Hospitals under the Liberalized Vaccination Policy E 3 Basis and Impact of Differential Pricing E.4 Vaccine Logistics E.5 Digital Divide F Conclusion A. Introduction 1. Proceedings in the present suo motu writ petition were initiated on 22 April 2021, when this Court took cognizance of the management of the COVID-19 pandemic during the second wave. Subsequently, hearings were conducted on 23 April 2021, 27 April 2021 and 30 April 2021 when submissions were heard on behalf of the Union of India1, States/Union Territories2, learned Amici appointed by this Court and some of the intervenors. 2. On 30 April 2021, this Court passed a detailed order in relation, inter alia, to the following issues: vaccination policy, supply of essential drugs, supply of medical oxygen, medical infrastructure, augmentation of healthcare workforce and the issues faced by them, and issues of freedom of speech and expression during the COVID- 19 pandemic. In its order, this Court had noted that its observations and directions were in consonance with a bounded-deliberative approach3 and hence, the UoI was directed to re-consider its policies on the above issues, taking into account this Court s observations. 1 "UoI"/interchangeably referred to as the "Central Government" 2 "UTs" 3 Sandra Fredman, "Adjudication as Accountability: A Deliberative Approach" in Nicholas Bamforth and Peter Leyland (eds), Accountability in the Contemporary Constitution (Oxford University Press, 2013) IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC A B C D E F G H 274 SUPREME COURT REPORTS [2021] 5 S.C.R. 3. Following the order dated 30 April 2021, another two judge Bench of this Court heard a Special Leave Petition4 against an order of the High Court of Delhi in relation to the supply of medical oxygen to the National Capital Territory5 of Delhi. During the course of the proceedings in that matter, the Bench primarily issued directions in relation to the supply of medical oxygen to the NCT of Delhi. However, through its order dated 6 May 2021, it also constituted a National Task Force to provide a public heath response to the COVID-19 pandemic on the basis of a scientific approach. The terms of reference of this National Task Force included, inter alia, assessing and making recommendations for the need, availability and distribution of medical oxygen; devising a methodology for allocation of medical oxygen and periodical review of the allocation based on the stage of the pandemic; providing recommendations for augmenting the supplies of oxygen; facilitating audits in each State/UT to determine whether oxygen supplies had reached its destination; efficacy, transparency and efficiency of the distribution networks within the State/UT; providing recommendations for ensuring availability of essential drugs, augmentation of medical and paramedical staff, management of the pandemic and treatment of cases. 4. During the course of the proceedings on 31 May 2021, we had the benefit of perusing the details provided in the affidavit filed by the UoI on 9 May 2021. The submissions contained in the affidavit were supplemented and updated in the hearing by Mr Tushar Mehta, learned Solicitor General of India, appearing on behalf of the Central Government. We have further heard the learned Amici, Mr Jaideep Gupta and Ms Meenakshi Arora, learned Senior counsel. 5. Since the last hearing in this matter, the second wave of the COVID-19 pandemic has started receding across the nation and the situation appears to have become more manageable. Hence, some of the issues discussed in the previous orders can await further deliberation. However, the issue of vaccination is absolutely crucial, since health experts globally agree that vaccination of the nation's entire eligible population is the singular most important task in effectively combating the COVID-19 pandemic in the long run. Hence, during the course of the proceedings on 31 May 2021, this Court has limited itself to hearing submissions on the UoI s vaccination policy and its roadmap for the 4 Union of India vs Rakesh Malhotra and another, SLP (Civil) (Diary) No 11622 of 2021 5 "NCT" A B C D E F G H 275 future. By way of abundant clarification, we note that all of the issues contained in this Court's previous orders still retain their overall importance, and this Court shall continue to monitor them alongside the National Task Force and intervene whenever necessary. 6. It is also important to note that numerous interlocutory applications and affidavits by individual State/UT Governments and members of civil society have been filed before us in this matter. We have perused them to understand the key issues being raised there, along with the helpful notes provided by the Amici. B. Submission by Counsel 7. Mr Tushar Mehta, learned Solicitor General, relying on the UoI s affidavit dated 9 May 2021, has made the following submissions to supplement it, in view of the recent updates: (i) The vaccination drive will be complete by the end of December 2021, and the Central Government is in active talks with foreign vaccine manufacturers at the highest political and diplomatic levels, to ensure the adequate supply of vaccines; (ii) It would be incorrect to state that a consequence of the UoI s updated policy on vaccination of those in the 18-44 age group is that there will be competition amongst the States/UTs; and (iii) Everyone above the age of 45 years can continue to get vaccinated at a facility through on-site registration, without previously having to book an appointment through CoWIN. 8. Mr Jaideep Gupta and Ms Meenakshi Arora, learned Senior counsel and Amici, have raised the following issues relating to vaccination distribution, augmentation of vaccine production and differential pricing of vaccines and the future preparedness for dealing with the COVID19 pandemic: (i) With respect to the procurement of vaccines, reports suggest that foreign vaccine manufacturers are generally not receptive or open to a dialogue with State/UT Governments on the basis that, as a matter of corporate policy, they only deal with federal governments of different nations; IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC A B C D E F G H 276 SUPREME COURT REPORTS [2021] 5 S.C.R. (ii) Since 1978 till 1 May 2021, the UoI has implemented the Universal Immunization Programme6 under which essential vaccines were procured by the UoI and were distributed to States/UTs free of cost for administering them to the end beneficiary. The said policy has held the test of times. Even during the vaccination drive for COVID-19 in phases 1 and 2 for vaccination of healthcare workers7, frontline workers8 and persons above the age of 45 years, the UoI procured all the vaccines and distributed them to State/UT Governments for administration. The single procurement model has also been followed by other nations for ensuring fast and effective administration of vaccines against COVID-19; (iii) The UIP has been replaced by the Liberalized Pricing and Accelerated National COVID-19 Vaccination Strategy9 from 1 May 2021 in phase 3 of the vaccination drive, whereby State/UT Governments or private hospitals are required to procure vaccines for persons between the age group of 18-44 years from the private manufacturers on the basis of a pro rata quota set by the UoI; (iv) The Liberalized Vaccination Policy leaves the State/UT Governments to fend for themselves, rather than the Central Government acting on behalf of the entire nation. As a consequence, the vaccine manufacturers are free to implement a differential procurement price for the UoI for vaccinating persons above 45 years of age, and for the State/ UT Governments and private hospitals for vaccinating the persons between 18-44 years of age; (v) While the Liberalized Vaccination Policy has been introduced to spur competitive prices, there are multiple States/UTs competing to purchase a scarce commodity from a few vaccine manufacturers. Consequently, the manufacturers have the advantage of creating a monopoly and selling it at any price that they desire to private healthcare institutions. 6 "UIP" 7 "HCWs" 8 "FLWs" 9 "Liberalized Vaccination Policy" A B C D E F G H 277 The State/UT Governments do not enjoy the unique position of the UoI, which has the advantage of being a monopolistic buyer and can negotiate an appropriate price for the vaccines on behalf of the entire population of India; (vi) The Liberalized Vaccination Policy puts an undue burden on persons between the age group of 18-44 years, specifically persons belonging to a poor socio- economic background, who have to purchase two doses of vaccines either from the State/UT Governments or private hospitals; (vii) In the alternative, the UoI has stated that all State/UT Governments have agreed to vaccinate their population free of cost and have undertaken to bear the burden of the vaccines which are available at a higher purchase price than the one available to the UoI. Thus, the end beneficiary is not impacted by the differential pricing in the Liberalized Vaccination Policy. With regard to this submission, the Amici have raised the following concerns: (a) While some States/UTs have announced that they will vaccinate their population for free, this policy statement must be confirmed by the State/UT Governments on affidavit before this Court. The Liberalized Vaccination Policy as it stands today, does not incorporate a condition whereby the cost of vaccination is imposed on the State/UT Governments. Instead, the end beneficiary is liable to pay the cost. There is a necessity for the State/UT Governments to place their decisions on record and for it to be part of the formal policy, such that persons can enforce their right to free vaccination, including before the courts; (b) Although the State/UT Governments may have announced free vaccination for their population, some of them are contesting the Liberalized Vaccination Policy before this Court and have advanced submissions for universal vaccination by the Central Government. Thus, it cannot conclusively be stated that State/UT Governments have agreed to the policy IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC A B C D E F G H 278 SUPREME COURT REPORTS [2021] 5 S.C.R. decision taken by the Central Government of deviating from the single procurement model; (c) The Liberalized Vaccination Policy, as a consequence of its differential pricing, treats individuals living across India residing in different States/UTs unequally, as States/UTs that are financially distressed may not be able to afford to purchase the vaccines at the prices set by the vaccine manufacturers or to lift the quantity allocated to them; and (d) The end result of the Liberalized Vaccination Policy is that the UoI can purchase vaccines at Rs 150 per dose for Covishield and Covaxin, while the State/UT Governments have to pay Rs 300 and Rs 400 per dose respectively. If the UoI were to be the single procurement agency for all vaccines at a fixed cost, then the cost of vaccination to the public exchequer would be substantially lower. Thus, it is incorrect to suggest that the end beneficiary, who contributes to the public exchequer, will not be unduly impacted; (viii) Although public health is a subject under Entry 6 of List II (State List) of the Seventh Schedule to the Constitution, Entry 81 of List I (Union List) deals with inter-State migration and inter-State quarantine and Entry 29 of List III (Concurrent List) deals with prevention of extension from one State to another of infectious or contagious diseases. Thus, the management of the pandemic, control of the spread of COVID-19, vaccination policy and pricing, are the responsibility of the Central Government, which must work in tandem with the State/UT Governments. The Liberalized Vaccination Policy, by putting the burden of vaccination of persons between 18-44 years of age on the State/UT Governments, conflicts with this constitutional balance of responsibilities between the Centre and States/ UTs; (ix) With regard to the vaccine distribution, the Liberalized Vaccination Policy has created a quota of 50:25:25 for the 18-44 age group. The quota of 25% that is available to State/ A B C D E F G H 279 UT Governments, which is equivalent to the private hospitals, is extremely disproportionate and not in touch with societal realities, as a large number of persons may not be able to afford two doses of a vaccine from a private hospital. Thus, if State/UT Governments are to bear the burden of vaccinating a majority of the persons in their States/UTs, the quota available to the private hospitals must be reduced; (x) The Liberalized Vaccination Policy does not provide any clarity on the basis of the pro rata allotment of the doses to each State/UT (available for purchase by the State/UT Government and private hospitals). The Policy does not indicate whether such apportionment will be on the basis of population; state of the pandemic in each State/UT; or the number of persons with co- morbidities between 18-44 years of age, among others. Further, the Policy does not indicate whether the pro rata allotment will be made by the UoI or the private vaccine manufacturer; (xi) It is reported that UoI on certain occasions has stated that it will refrain from interfering in the issue of vaccine distribution. Contrarily, UoI has also been stated that it may decide to redistribute the vaccines procured by it among State/UT Governments. The basis on which the redistribution of vaccines will take place among States/UTs has not been provided in the policy document; (xii) The Liberalized Vaccination Policy does not provide for prioritizing of persons with co-morbidities; persons with disabilities or suffering from other illnesses; care-givers for the elderly and sick; teachers and others in the age group of 18-44 years. Further, the CoWIN application is not built with functions which prioritize a certain category of persons, as it only books appointments on a first-cum-first-served basis; (xiii) News reports indicate that crematorium workers have either not been vaccinated, or are unaware that they are eligible for vaccination in phases 1 and 2; IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC A B C D E F G H 280 SUPREME COURT REPORTS [2021] 5 S.C.R. (xiv) With regard to preparedness, the UoI has claimed that it will be able to vaccinate a substantial number of persons (around 100 crore persons requiring 200 crore doses) by December 2021. However, no projections have been shared with this Court regarding how this target would be achieved. Based on reports, it appears that the UoI has factored a number of vaccines that are currently in their development stages to reach its projected number of 200 crore doses. This approach would be misguided as the success and efficacy of vaccines that are currently in the stage of clinical trials is uncertain and cannot be guaranteed; (xv) There is material to suggest that the augmentation of vaccine production will be inadequate to vaccinate the population between 18-44 years of age. The total population of this age group is 59 crores, which would require around 122 crore doses. Based on reports, the existing manufacturers (Serum Institute of India10 and Bharat Biotech India Limited11) will be able to produce less than 10 crore doses per month. Optimistically, around 15-20 crores doses of Sputnik V will be available per month. At this rate, it would take around 12 months for the population in this age group to be inoculated, by which time the virus may have mutated, causing further waves of the pandemic; (xvi) Meanwhile, there is a necessity to ensure that guidelines regarding standardization of masks are formulated and publicized. Thus, medical guidance is necessary to ensure that masks of appropriate quality are produced and distributed free of cost to curb the spread of the infection; and (xvii) It has been reported that due to dearth of electric crematoria, persons who have succumbed to COVID-19 are not dignified with a proper cremation and are cremated without any rituals. The UoI and State/UT Governments may consider forming appropriate guidelines which augment the creation of infrastructure for electric crematoria and a 10 "SII" 11 "BBIL" A B C D E F G H 281 protocol for cremation of the dead. C. National Vaccination Policy 9. Phase 1 of the National COVID-19 Vaccination Strategy was launched on 16 January 2021 and 1 February 2021 and was targeted towards protecting HCWs and FLWs. Phase 2 was initiated on 1 March 2021 and 1 April 2021, and was directed towards protecting the most vulnerable population in the age group of persons above 45 years of age. In phase 1 and 2, the UoI was procuring the vaccines and distributing them to the States/UTs free of cost for disbursal through government and private COVID-19 vaccination centres. The private facilities were not allowed to charge a sum above Rs 250 per person per dose (Rs 150 for vaccines and Rs 100 as operational charges) from a beneficiary. 10. During phase 2, eligible beneficiaries could register and book appointments for vaccination on the CoWIN 2.0 portal or other IT applications such as Aarogya Setu. From 1 March 2021 onwards, the population aged 60 years or which would attain the age of 60 years or more as on 1 January 2022 was eligible to register on the CoWIN platform. Further, persons who were aged 45 years or would attain the age of 45 years to 59 years as on 1 January 2022 and had any of the 20 specified co-morbidities were also eligible to register on the CoWIN platform. From 1 April 2021 onwards, all persons who were aged 45 years or would attain the age of 45 years to 59 years as on 1 January 2022 were eligible to register on the CoWIN platform. On-site registration facility was also made available at vaccination centres in this phase. 11. In phase 3, a Liberalized Vaccination Policy was introduced by the UoI, which came into effect on 1 May 2021. We have perused the documents available in the public domain (guidance note12, press releases13 and policy document14) issued by the Central Government to understand the written policy of the Central Government with regard to phase 3. Based on such documents, the main elements of the Liberalized Vaccination Policy can be identified as: 12 Guidance Note For COWIN 2.0 dated 28 February 2021, available at 13 Press releases dated 28 February 2021 and 19 April 2021, available at and 14 Liberalized Pricing and Accelerated National Covid-19 Vaccination Strategy dated 24 April 2021, available at IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC A B C D E F G H 282 SUPREME COURT REPORTS [2021] 5 S.C.R. (i) Vaccine manufacturers are required to supply 50% of their monthly Central Drugs Laboratory15 doses to the UoI and would be free to supply the remaining 50% doses to State/ UT Governments and in „other than Government of India channel 16; (ii) Manufacturers were required to make a declaration of the price of the 50% supply that would be available to State/ UT Governments and in the „other than GoI channel before 1 May 2021. Based on this price, States/UTs, private hospitals and industrial establishments through their hospitals may procure vaccines from the manufacturers. Private hospitals would be able to procure their supplies only from the 50% supply earmarked for 'other than GoI channel' ; (iii) The prices charged for vaccination by private hospitals would be monitored. As a result, the earlier dispensation where private COVID-19 vaccination centres which received doses from the UoI could charge up to Rs 250 per dose ceased to exist; (iv) The population which is now eligible to obtain vaccines at UoI s vaccination centres is limited to HCWs, FLWs and those above 45 years of age. The population between 1844 years is eligible to obtain vaccines from 'other than GoI channel;' (v) The vaccination would continue to be available for free for eligible population groups in those vaccination centres which receive their vaccine doses from UoI; (vi) The vaccination would continue to be a part of the National Vaccination Programme and would follow all existing guidelines. The CoWIN platform would capture the vaccination, stocks and price per vaccination applicable in all vaccination centres. The vaccination drive would comply with 'Adverse Event Following Immunization' management and reporting, digital vaccination certificate and all other prescribed norms; 15 "CDL" 16 "other than GoI channel" A B C D E F G H 283 (vii) The division of 50% supply to UoI and 50% to 'other than GoI channel' would be applicable uniformly across all the vaccine manufactures in the country; (viii) The fully ready to use imported vaccines are allowed to be utilized entirely in the 'other than GoI channel' ; and (ix) The UoI from its share will allocate vaccines to States/ UTs based on criteria of performance (speed of administration, average consumption) and extent of infection (number of COVID-19 cases). Wastage of vaccines would also be considered in the criteria and would affect the allocation negatively. Based on the above criteria, a Statewise quota would be decided and communicated to the States/UTs in advance. 12. The facility of only online appointment on the CoWIN portal was initially introduced for the entirety of the population between the ages of 18-44 years. Later, on 24 May 202117, the UoI announced that on-site registration will be made available for the 18-44 years age group. However, this is contingent on: (i) the State/UT Government enabling this policy; and (ii) only in cases of wastage at a particular government COVID-19 vaccination centre due to a no-show by an online appointee. Further, this facility has not been expanded to private COVID-19 vaccination centres. D. Separation of Powers 13. At the outset, we seek to clarify the nature of this Court s jurisdiction in the exercise of the power of judicial review over the management of the COVID-19 pandemic in India. In its affidavit dated 9 May 2021, the UoI has highlighted a few concerns which are detailed below: (i) The executive is battling an unprecedented crisis and the government needs discretion to formulate policy in larger interest and its wisdom should be trusted; (ii) The current vaccine policy conforms to Articles 14 and 21 of the Constitution, and requires no interference from the courts as the executive has "room for free play in the joints" 17 Available at IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC A B C D E F G H 284 SUPREME COURT REPORTS [2021] 5 S.C.R. while dealing with a pandemic of this magnitude; (iii) The current steps are thoughtfully undertaken to tide over an imminent crisis, which may turn out to be imprudent in the long run. However, they need to be appreciated from a short-term and holistic perspective; (iv) Judicial review over executive policies is permissible only on account of manifest arbitrariness. No interference from judicial proceedings is called for when the executive is operating on expert medical and scientific opinion to tackle a medical crisis; and (v) Any over-zealous judicial intervention, though well-meaning, in the absence of expert advice or administrative experience may lead to unintended circumstances where the executive is left with little room to explore innovative solutions. 14. It is trite to state that separation of powers is a part of the basic structure of the Constitution. Policy-making continues to be in the sole domain of the executive. The judiciary does not possess the authority or competence to assume the role of the executive, which is democratically accountable for its actions and has access to the resources which are instrumental to policy formulation. However, this separation of powers does not result in courts lacking jurisdiction in conducting a judicial review of these policies18. Our Constitution does not envisage courts to be silent spectators when constitutional rights of citizens are infringed by executive policies. Judicial review and soliciting constitutional justification for policies formulated by the executive is an essential function, which the courts are entrusted to perform. 15. We had clarified in our order dated 30 April 2021, that in the context of the public health emergency with which the country is currently grappling, this Court appreciates the dynamic nature of the measures. Across the globe, the executive has been given a wider margin in enacting measures which ordinarily may have violated the liberty of individuals, but are now incumbent to curb the pandemic. Historically, the judiciary has also recognized that constitutional scrutiny is transformed during such public health emergencies, where the executive functions in rapid consultation with scientists and other experts. In 1905, the Supreme Court 18 DDA vs Joint Action Committee, (2008) 2 SCC 672 A B C D E F G H 285 of the United States in Jacobson vs Massachusetts19 considered a constitutional liberty challenge to a compulsory vaccination law that was enacted to combat the smallpox epidemic. Justice Harlan had noted the complex role of the government in battling public health emergencies in the following terms: "..the State may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety... While this court should guard with firmness every right appertaining to life, liberty or property as secured to the individual by the Supreme Law of the Land, it is of the last importance that it should not invade the domain of local authority except when it is plainly necessary to do so in order to enforce that law. The safety and the health of the people of Massachusetts are, in the first instance, for that Commonwealth to guard and protect......So far as they can be reached by any government, they depend, primarily, upon such action as the State in its wisdom may take, and we do not perceive that this legislation has invaded any right secured by the Federal Constitution." The Supreme Court of United States, speaking in the wake of the present COVID-19 pandemic in various instances, has overruled policies by observing, inter alia, that "Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten"20 and "a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights"21. 16. Similarly, courts across the globe have responded to constitutional challenges to executive policies that have directly or 19 197 U.S. 11 (1905) 20 Roman Catholic Diocese of Brooklyn, New York vs Cuomo, 592 U.S., 141 S. Ct. 63 21 Calvary Chapel Dayton Valley vs Steve Sisolak, Governor of Nevada, et al, 140 S.Ct. 2603 (Mem) (Justice Alito Dissenting Opinion) IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC A B C D E F G H 286 SUPREME COURT REPORTS [2021] 5 S.C.R. indirectly violated rights and liberties of citizens. Courts have often reiterated the expertise of the executive in managing a public health crisis, but have also warned against arbitrary and irrational policies being excused in the garb of the "wide latitude" to the executive that is necessitated to battle a pandemic.