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COVID 19 Plea to Supreme Court: “Necessary That Vaccines Must Be Available To All Free Of Charge Through Government Centres”

An application has been filed by Jan Swasthya Abhiyan before Supreme Court in the suo motu matter pertaining to the COVID-19 crisis considering issues of procurement and the pricing of the vaccine in view of the approach taken by the Union of India.

By: Gurleen Kaur Anand, Amity University, Mumbai

It is submitted that one of the primary reasons for the shortage of vaccines is the limited number of manufacturers. The manufacturers have applied their own pricing to the vaccine. On the other hand, some states are vaccinating the public free of cost.

Yet another aspect which is a hurdle to widespread manufacture of vaccines is the grant of patents to the manufacturers i.e., Bharat Biotech and Oxford University (on behalf of Astra-Zeneca). In view of the patents granted in respect of the vaccines, the other manufacturers are unable to step in and manufacture the product.

 The applicant is seeking certain urgent directions which are as follows:

  1. Scaling up the production of vaccines against coronavirus; 
  2. Single Procurement Window of the vaccines by the Central Government; 
  3. Allocation of vaccines to the States by the Central Government;  
  4. Distribution of the vaccines to the States;
  5. Ceiling prices of vaccines against Covid 19

It was said that “Recently from March 2021 onwards, India is witnessing a second wave of the Coronavirus. It has taken 63 days for cases to rise from 8,000 on February 2, 2021 to 1,03,558 as of April 5, 2021. As of April 24, 2021, India had reported a total of 24,28616 cases with a cumulative of 186920 deaths of COVID-19. In one day alone, April 26 2021 over 3.2 lacs cases of Covid 19 were reported and deaths crossed over 2,000 over seven days running. This is the second wave of the Corona virus infection in the country which is turning out to be much more virulent and infectious than the first wave that started in India in March 2020. In the second wave, in 2021 the number of cases is also rising more rapidly than in the first wave.”

It is to be noted that it is up to the states to make them available free or for a price. The result could be that richer states will make the vaccines available free of charge and other, poorer states would certainly charge for them.

Resultantly, some persons may not get the vaccine administered, thereby defeating the purpose of the programme. The Jan Swasthya Abhiyan averred that such a decision allows profiteering at the cost of lives of the citizens of India.

It is therefore necessary that vaccines must be available to all free of charge through Government centres. 

SII and Bharat Biotech have both announced their prices. SII is going to sell its vaccine at Rs. 150 to the Central Government and at Rs. 400 to State Governments, which it reduced to Rs. 300 per dose. It will sell at Rs. 600 per dose in the private market. In contrast, Bharat Biotech will sell its vaccine at Rs. 150 per dose to the Central Government, at Rs. 600 per dose to the state governments and Rs. 1200 per dose in the private market. Shockingly, this is more than what is being paid abroad. 

Apart from the patent protection, vaccine companies are using the trade secret protection to keep the manufacturing process and cell lines a secret. The CDSCO insists the non-originating vaccine manufacturer to prove the safety and efficacy through clinical trials. In the current pandemic, it is important to share these trade secrets to scale up the production through diverse manufactures. Unlike the compulsory licence provisions in the Patents Act, there is no legal mechanism in India to disclose the trade secret to protect public health. The urgent intervention of the Hon’ble Court is required to facilitate the sharing of the trade secret to scale up the production of vaccines.Stating that the lack of limited availability and accessibility of medicines for treatment of COVID-19 violates the Constitutional Right to Health and Life guaranteed under Article 21, it is thus prayed that a vaccine distribution programme is developed by the Centre which ensures vaccines are available to all free of charge.

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