Priority-based distribution of Covid-19 Vaccine: Violative of Constitutional Fundamental Rights?

The Serum Institute of India, the largest vaccine manufacturer in the world, has warned that it is only until the end of 2024 that enough doses of COVID-19 vaccines could be inoculated for each person in the world. It is estimated that globally, there is a requirement of 15 billion doses of COVID-19 vaccine as the immunization requires administration of two-doses for each individual.[1]Given the desperate need for vaccination and its short supply, India and other jurisdictions have adopted a priority mechanism for distribution.

The National Expert Group on Vaccine Administration for COVID-19 (NEGVAC) was formed in India in August 2020 for deliberation on the various challenges to countrywide distributing a vaccine such as determining the recipients' priority and a safe method of distribution in order to maintain the temperature through the cold chain. In its first meeting on 12th August, the expert group discussed the procurement and delivery mechanism and financial resources required for procurement. The group also deliberated upon domestic vaccine manufacturing and prioritization of immunization.[2]

NEGVAC provides for three prioritized population groups for immunization-

● Healthcare Workers (HCWs) – 1 crore (Both government and private)

● Frontline Workers (FLWs) – 2 crores (Personnel from State and Central Police Department, Armed Forces, Home Guards and Civil Defense Organizations including disaster management volunteers and Municipal Workers)

● Prioritized Age Group – 27 crore (Persons above the age of 50 years and persons <50 years with associated comorbidities)

Right to Life and Equality under the Constitution of India

Article 14 of the Constitution of India provides for the right to equality before law and prohibition of discrimination on the grounds of religion, race, caste, sex, or place of birth. The question arises whether prioritization of the distribution of vaccines violates the right to equality and whether the vaccine shall be made available to each person. Moreover, Article 21 of the Constitution of India provides for the right to life which also includes the right to health. The question again arises whether prioritising vaccine distribution violates the right to life and freedom from disease under the right to health.

The Constitution of India also provides for Article 47 under the directive principles for state policy. It provides that it is the duty of the state to raise the level of nutrition and the standard of living and improve public health. It is also the duty of the State that it shall regard raising the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. Given the above, the decision to prioritize distribution of COVID-19 vaccine must be evaluated.

Right to Healthcare and Vaccine Prioritization

The Supreme Court of India in Navtej Singh Johar and others v. Union of India, through Secretary, Ministry of law and Justice[3], held that right to health and healthcare is a facet of right to life under Article 21 of the Constitution of India. The court laid down that right to health is not limited to ‘right not be unwell’. This right is beyond the basic absence of disease or infirmity, but it covers 'complete physical mental and social well-being'. The court emphasized that the right to health includes right to control one's health and body and to be free from interference (for instance, from non-consensual medical treatment and experimentation), and entitlements such as the right to a system of healthcare that gives everyone an equal opportunity to enjoy the highest attainable level of health.

The Supreme Court has laid down a clear distinction between the negative and positive obligation of the state under Article 21. The court has the power to impose positive obligations upon the state to take measures and provide adequate resources or access to treatment facilities to secure enjoyment of the right to health.

It is clear from above that it shall be the duty of the state to provide healthcare equally to all the people. But while considering the Apex Court's stand on healthcare issues, it must also be noted that there are specific statutes that allow the government to impose restrictions over the right to equality when it comes to the distribution of health care measures such as vaccines during an epidemic situation.

Indian Epidemic Diseases Act, 1897

The Epidemic Diseases Act provides for prevention of the spread of dangerous epidemic diseases. It is specifically provided under Section 2 that the government may take special measures and may prescribe certain regulations that the public or any person shall observe as it shall deem necessary to contain and prevent the spread and outbreak of any epidemic disease. Wherein the current epidemic falls within the ambit of the Act, the government is allowed to prioritize vaccine distribution in dire situations such as the COVID-19 epidemic.

Indian Disaster Management Act, 2005

The Disaster Management Act provides for the effective management of disasters. In the interest of giving effect to Act's objects, Section 2 provides for "mitigation" which means measures aimed at reducing the risk, impact, or effect of a disaster or threatening disaster situation that the government may adopt. It may be argued that prioritization of vaccine distribution is a mitigating measure to contain and effectively manage the COVID-19 disaster as the priority is given to the frontline and healthcare workers who reduce the impact of the epidemic and treat those who suffer from it.

Given the powers granted in the above two statutes, the government is justified in taking measures that contain and manage the virus's spread. Such actions may also include prioritization of vaccine distribution where vaccine production is limited, and specific classes of people are either more prone to the virus or are more exposed to the virus than others.

Medical Ethics

The question of prioritizing vaccine distribution is not just a legal question but also an ethical one. “An ethical framework for global vaccine allocation”,[4]a research undertaken by global health experts provides for a Fair Priority Model in distributing COVID-19 vaccines. The model offers three fundamental values: benefiting people and limiting harm, prioritizing the disadvantaged, and equal moral concern. They say that prioritizing the disadvantaged is an absolute value in ethics and global health.[5] This approach requires correct identification of who constitutes disadvantaged. Their argument to defend prioritization is that equal moral concern requires treating similar individuals similarly and not discriminating based on morally irrelevant differences, such as sex, race, and religion. It is argued that distributing different quantities of vaccines to different countries is not discriminatory if it effectively benefits people while prioritizing the disadvantaged.

Global Equality

Equal distribution of vaccines is not an issue which is limited to distribution among various categories or classes of people. Still, it is an issue which first extends to equality of distribution of vaccines among the nations. To ensure equal access to COVID-19 vaccines, ‘COVAX facility’ was founded through a joint initiative among WHO, Gavi Vaccine Alliance and Coalition for Epidemic Preparedness Innovation (CEPI).[6] COVAX aims to have 2 billion doses of vaccine by the end of 2021, which shall be enough to protect the high risk and vulnerable people, as well as frontline healthcare workers of the participating economies. COVAX facility aims at the development of the vaccine and its fair distribution among the participants. The COVAX facility also suggests a distribution mechanism where the most disadvantaged groups are prioritized in vaccine distribution.

The World Health Organization has developed a Fair Allocation Framework.[7] to ensure that vaccines are shared equitably across the world. The Framework provides that all countries shall receive vaccines in proportion to their population size in order to immunize the high-priority groups. It is only in the second phase that the additional population would be covered according to national priorities.

The UNHRC recommends that it is imperative that access to COVID-19 vaccines and treatment is provided to all without discrimination and prioritized for those who are most exposed and vulnerable to the risk of COVID-19. The UNHRC identifies people who are often neglected from health services to be included in vulnerable people who shall be prioritized for vaccination. These include those living in poverty, women, indigenous peoples, people with disabilities, older persons, minority communities, internally displaced people, persons in overcrowded settings and in residential institutions, people in detention, homeless persons, migrants and refugees, people who use drugs, LGBT and gender diverse persons.[8] In contrast to the classes of people that may be considered vulnerable as recommended by UNHRC, most of the nations have opted to prioritize primarily healthcare and frontline workers.

Opinion

The prioritization of vaccine distribution is a legal and ethical question. It is also a question of public policy and global practices. It is true that certain classes of people, such as healthcare workers and frontline workers, are more exposed to the virus, and they are a crucial resource to tackle the effect of the virus. Other classes of people, such as the elderly, are more prone to the vaccine's ill-effects compared to the younger population that may pass through the infection asymptomatically. While keeping the short supply of the vaccine into consideration, it is only practically justified to prioritize vaccine distribution until enough doses for the whole population becomes available.

A persistent challenge to the fight against the COVID-19 pandemic is the mutation in the virus. The mutation in most cases is slightly different from the original strain, but a new variant of COVID-19 is spreading rapidly in the UK which is many fold more dangerous and infectious. The top two contenders of the vaccine, Pfizer and Moderna might become less effective than expected for the new strain, whereas it is very early to determine the effectiveness of the vaccine against new virus forms.[9] In view of the same, the distribution shall be done while taking the new strains into consideration as a stock of the current vaccine may be rendered useless for a new mutated form of the virus.

In India, the government is allowed to prioritize distribution under the Epidemic Diseases Act and the Disaster Management Act, and any action taken under such provisions would not violate the right to equality and other constitutional fundamental provisions.. When compared to other nations, it can be observed that a similar approach has been adopted worldwide and the same has been advised by a global health organization and medical ethics authorities.

[1] S. Findlay, “Not enough Covid vaccine for all until 2024, says the biggest producer," Subscribe to read | Financial Times, 14-Sep-2020. [Online]. Available: https://www.ft.com/content/a832d5d7-4a7f-42cc-850d-8757f19c3b6b. [Accessed: 23-Dec-2020] [2] "National Expert Group on Vaccine Administration for COVID-19 deliberates on a strategy to ensure COVID-19 vaccines' availability and its delivery mechanism," Press Information Bureau. [Online]. Available: https://pib.gov.in/PressReleasePage.aspx?PRID=1645363. [Accessed: 17-Dec-2020] [3] (2018) 10 SCC 1 [4] E. J. Emanuel, G. Persad, A. Kern, A. Buchanan, C. Fabre, D. Halliday, J. Heath, L. Herzog, R. J. Leland, E. T. Lemango, F. Luna, M. S. McCoy, O. F. Norheim, T. Ottersen, G. O. Schaefer, K.-C. Tan, C. H. Wellman, J. Wolff, and H. S. Richardson, “An ethical framework for global vaccine allocation,” Science, 11-Sep-2020. [Online]. Available: https://science.sciencemag.org/content/369/6509/1309. [Accessed: 23-Dec-2020] [5] T. Ottersen, D. Mbilinyi, O. Maestad, O. F. Norheim, Health Policy 85, 218 (2008). [6] “WHO's COVAX facility aims to have 500 mn Covid-19 vaccine doses ready by early 2021 - World News, Firstpost,” Firstpost, 09-Dec-2020. [Online]. Available: https://www.firstpost.com/world/whos-covax-facility-aims-to-have-500-mn-covid-19-vaccine-doses-ready-by-early-2021-9091701.html. [Accessed: 23-Dec-2020] [7] “Coronavirus disease (COVID-19): Vaccine access and allocation,” World Health Organization. [Online]. Available: https://www.who.int/news-room/q-a-detail/coronavirus-disease-(covid-19)-vaccine-access-and-allocation. [Accessed: 17-Dec-2020] [8] “Statement by UN Human Rights Experts Universal access to vaccines is essential for prevention and containment of COVID-19 around the world*,” OHCHR. [Online]. Available: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26484. [Accessed: 29-Dec-2020] [9] D. Kennedy, “Will the Pfizer and Moderna Covid-19 vaccines be effective against the new strain?,” Quartz. [Online]. Available: https://qz.com/1949085/will-covid-19-vaccines-work-against-the-new-mutated-strain/. [Accessed: 29-Dec-2020]