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Wednesday, March 03, 2021

Right to free vaccine — a constitutional mandate

The Government of India’s moral, international and legal obligations make it imperative that COVID-19 vaccines are free and universal.

New Delhi |
Updated: January 17, 2021 7:01:43 pm
Coronavirus, COVID-19, Coronavirus live, COVID-19 live, COVID-19 live updates India, Coronavirus india, Coronavirus live updates, Coronavirus death, Coronavirus globally, India news, Indian Express newsThe next phase of vaccination, aimed at protecting 27 crore Indians from the novel coronavirus infection, will be based on a “citizen-centric model”.

Written by Radhika Roy and Mukund P Unny

The largest vaccination drive in history has been initiated in India, with free COVID vaccine being administered across the nation only to “prioritised beneficiaries” which includes three crore healthcare and frontline workers. Even though states like Delhi, West Bengal, Bihar and Kerala have assured free vaccines for everyone, there is no commitment from the central government to ensure that the benefit of vaccination is universal for all Indians. In a country like India, the Centre should ensure that there is a right to free vaccine for all Indians.

Even as India is tentative in declaring free COVID vaccines for all, countries such as the United States, France, Japan, Russia, Norway and Bahrain have pledged free vaccines for all their citizens. In May 2020, around 140 global leaders and experts, including the President of South Africa and Chairman of the African Union, Cyril Ramaphosa, and the Prime Minister of Pakistan, Imran Khan, signed an open letter requesting the governments across the world to unite behind a “people’s vaccine” against COVID-19. “Access to vaccines and treatments as global public goods are in the interests of all humanity. We cannot afford for monopolies, crude competition and near-sighted nationalism to stand in the way”, declared the global leaders.

Incidentally, the WHO as well as GAVI, a global vaccine alliance, have advocated for the declaration of vaccination as a “global public good” and have urged countries to not perceive immunisation in terms of solely protecting an individual, but for the long-run idea of creating herd immunity, thereby protecting the entire society. WHO categorically enlists disease eradication as a concept which is non-excludable from being qualified as a “global public good” as it, despite its externality, benefits everyone at the end of the day.

Studies from the United Kingdom and the United States have shown that death due to COVID-19 is proportionally related to poverty. Maybe such aspects weighed in favour of free COVID-19 treatment offered by Kerala, which has shown one of the least death rates among big states in India. As Nelson Barbosa, former Finance Minister of Brazil, opined, market solutions are not optimal to fight a pandemic. Therefore, the public healthcare system, including free vaccination and free treatment are essential to deal with such a massive public health crisis.

A recent survey by the Gaon Connection found that the biggest worry in rural India was whether the vaccine would be available for free and that 36 per cent of the interviewed respondents exhibited an unwillingness to pay for the vaccine. “Vaccine hesitancy” has been ranked by the WHO in 2019 as one of the top ten threats to global health. To tackle this hesitancy, one of the greatest barriers — the affordability of the vaccination — must be dispelled to secure the right to health of its citizens.

The right to health flows directly from Article 21 of the Constitution of India as has been held consistently by the Supreme Court in a catena of judgments, starting from the 1984 case of Bandhua Mukti Morcha v. Union of India and Ors. This inviolable right naturally encompasses the right to access affordable treatment, as iterated by the Supreme Court in a suo moto case pertaining to the proper treatment of COVID-19 patients. The apex court held the state responsible for making provisions to cap the charges levied by private hospitals on incoming COVID-19 patients and noted that even if one managed to survive COVID-19, the individual would be rendered financially compromised due to the high cost of the treatment.

In light of the above, if the right to health is a guaranteed fundamental right for an Indian citizen, she also possesses a right to free vaccine as it is a sub-set of the right to life which is guaranteed by our Constitution. In a 1996 case of Paschim Bangal Khet Mazdoor Samity & Ors. v. State of Bengal & Ors, the Supreme Court had held that the primary duty of a welfare state encompassed the obligation of the government to provide adequate medical facilities for its citizens. India, by furthering its commitment as a welfare state, must provide the vaccine for free as the taking the vaccine is not an individual choice, but is a mandate for the overall security of the country.

There is also the apprehension that prioritising the administration of the vaccine at the behest of the bureaucracy may lead to arbitrariness. It is well-recorded that in such situations, it is the poor who end up with the short end of the stick. Therefore, in order to ensure that there is complete equity in the availability and accessibility of the vaccine, it would be prudent to dispense the vaccine for free to all.

The 1946 Constitution of the WHO, 1948 Universal Declaration of Human Rights, and the 1966 International Covenant on Economic, Social and Cultural Rights, all enshrine the right to health, and countries, including India, who have ratified these treaties and conventions, have committed themselves to uphold this right, in an inclusive manner so that everyone can attain the equal opportunity to enjoy the highest attainable level of health.

Despite being home to one of the world’s largest health programmes, vaccinating a billion people for the first time is bound to be a daunting challenge and the government will have to navigate rough administrative, societal and financial terrains. While the intention behind the promises of free vaccine is laudable and in consonance with the principles enshrined in our Constitution, there is a need to examine the plausibility of such open-ended statements through the prism of ground realities. In this context, the ultimate methodology that can be effectuated for free pan-India vaccination would be one that can successfully take a leaf out of the playbook of the practice that was implemented for eradicating smallpox and polio.

Enabling vaccine equity will also lead to long-term financial benefits for the government as the national lockdown wreaked havoc on the economy. A healthy society is directly proportional to a healthy economy. For this, there resides in the government a solemn duty to disseminate the vaccine to counter COVID-19 for free to all. Vaccination is one of the most cost-effective survival interventions and extending the free vaccine to every individual in the country will inevitably prove to be beneficial for not only the citizens of the country, but also to the state.

(Roy is a lawyer and a legal journalist based out of New Delhi, Unny is a lawyer practising in New Delhi)

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