Covid-19 | Govt. Policy | Jurisprudence | Politics
June 8, 2021

Shashank Pandey

Shanshank is one of the founders of The Law Culture. He is a final year student at RMNLU. He is primarily interested in Intellectual Property Rights, Labour Laws, Arbitration and Constitutional Law.

Recently many state governments expressed anguish over limited supply of vaccines to the states from the centre. Many non BJP ruled states have complained of vaccine shortage and lack of Centre Corporation in providing them adequate doses to inoculate their target population. Punjab stated that it was forced to stop vaccination for Phase 1 and Phase 2 categories because of non availability of vaccines.

In lieu of this many states resorted to floating global tender for procurement of vaccines from outside India. The proposal of such tender posed many complex questions than it ventured to answer. There were apprehensions on the success of such move by experts which were proven right in matters of days. One of the pressing issues was the role of federal government in such procurement and whether such moves actually showcase the dismantling of this cooperative federalism facade.

The COVID-19 vaccine production, distribution and administration were always going to be a herculean task in India which necessitated unprecedented level of coordination between centre and states. However last few months have revealed the disparities in stand of centre and states. Resultantly showing us how Indian federalism has mutated to reveal a more deadly version of it whose nomenclature is only befitting if we use it with the cause of such mutation i.e. vaccine federalism.

States roaming in global market

In April it was reported that the central government has left the import of vaccines to states and companies. Orissa was one of the first governments to float the global tender for expeditious procurement of COVID vaccines. Many other states followed this suit to float their own tenders and most recently Delhi government has floated a similar tender after many statements in media expressing inability to arrange vaccines.

Such scrambling by Indian states on the international stage for vaccines was bound to be inequitable and inefficient, also propagating a discordant image of the country already struggling to cope or curtail this 2nd wave. Deputy Chief Minister of Delhi informed that Pfizer and Moderna have refused to sell COVID-19 vaccine directly to the Delhi government rebutting that they only deal with sovereign states. In a communication Moderna informed its supply agreements of committed orders of over 1000 million doses to countries like US, EU, Canada, Japan, Korea, Israel, Taiwan, Columbia, Singapore, Qatar, Switzerland etc.

It was hard to understand why the centre won’t float a single global tender on behalf of citizen of India. Centre is better placed fiscally when compared to states that are not similarly situated in terms of revenue expenditure. On one hand Maharashtra might be able to offer higher price and can afford to vaccinate their population for free but states lower down in this table of revenue will find it hard to vaccinate their population for free to begin with let alone import expensive vaccine.. Additionally the COVID-19 induced economic distress coupled with tussle with centre over GST compensation has placed them in a fragile situation with very little fiscal cushion.

Few foreign manufacturers, especially Pfizer, posed a condition of indemnity to be incorporated into its agreement for vaccine supply to India. Indemnity will allow Pfizer to abstain from any legal liability that may arise because of adverse effect of the vaccine supplied by them. The intricacies of this condition are quite complex. As Murali explains, that irrespective of whether the Indian government decides to indemnify Pfizer or not, ultimately they are best placed to negotiate this agreement as the condition will have direct bearing on the price of the vaccine. Pfizer and Moderna have entered into such agreement with other sovereign nation via federal government. Such indemnity negotiations are being held all over the world by sovereign nations with an object to attract these manufacturers. For instance, in the United States the health and Human Resources Secretary invoke the public Readiness and Emergency Preparedness Act which empowers the government to provide legal protection to companies making or distributing critical medical supplies such as vaccines and treatment unless there is “wilful misconduct” by the company.

Additionally, the central government is solely responsible to grant regulatory approval to drugs and vaccines. Because of increasing pressure over absence of foreign vaccine manufacturers in this time of acute shortage government was compelled to relax its stringent regulatory stand. In April it relaxed the norm and allowed companies to conduct a bridging trial parallel to the roll out post authorization as opposed to conducting a local clinical trial before seeking an emergency licensure. Vaccine manufacturers don’t look at regulatory mechanism in isolation but take into account the financial burden associated to the process. In current scenario they won’t be keen on dealing with two different parties exposing themselves to duality of negotiations and liability.

Making sense of figures

The most pressing concern of the current structure is lack of transparency at every possible front. Many Right to Information filed with the central government were returned with a response that the information is not in public domain or the documents were not traceable. Supreme Court expressed anguish over non availability of vaccine policy document in public domain.  There is a systemic denial of data from government to the public making it hard to make sense of its decisions.

In an affidavit filed by the centre in the suo motu case concerning distribution of essential supplies and services during pendemic before the Supreme Court it provided details of vaccine distribution to states in an annexure attached therein. As per the new Liberalized and Accelerated National COVID-19 Vaccination Strategy vaccine manufacturers would supply 50% of their monthly Central Drug Laboratory (CDL) released doses to Government of India and would supply remaining 50% doses to “other than Government of India channel” i.e. State Governments, Private Hospitals and Hospitals of Industrial Establishments. In the “other than government of India channel” state government could only procure half of the allot open market pool which means 25% of the vaccine production.

According to the affidavit vaccination to the 18-44 age group is permitted only under the “other than government channel” i.e. vaccine procured by states and private hospitals in open market. Additionally the centre determined the amount of doses to be available to each state based on State-wise population of 18 to 44 years “pro-rata”. In May’21 2 Crore (20 million) doses of such vaccine doses were made available for procurement.

For the purpose of this article we’ll look at only top 9 states with highest case load (as on 28th May’21). Bihar has been added to have an equal participation of BJP ruled and non-BJP ruled states.

STATEDoses available for procurement through “other than govt of India channel” *Number of people vaccinated from 1st May to 30th May’21 in the age group 18-44#Number of doses allotted to the states through “govt of India channel” for 1st fortnight i.e. till 14th May’21#Number of people vaccinated from 1st to 15th May’21 in the age group of 45+
Tamil Nadu10,35,06012,87,4667,33,1807,51,042
Uttar Pradesh34,38,85021,35,73717,61,72016,76,286
West Bengal14,24,40012,00,66713,23,28014,30,145
Madhya Pradesh12,17,77016,63,91211,58,4107,61,261
Table 1
Data extracted from affidavit filed by Central government before Supreme Court
# Data from Co-WIN portal

For Government of India channel

The vaccine administration data of the above-mentioned states is till 15th May. The data in Column IV and Column V reveal the political bend that is prevalent in the vaccine distribution issue. Interestingly, 5 states failed to inoculate equivalent number of population -Karnataka, Uttar Pradesh, Gujarat, Madhya Pradesh and Bihar. Incidentally all are BJP ruled states. Other non BJP ruled states fared well in terms of vaccine administration for this section of population highlighting very low percentage of wastage (if any). Figures exceeding the allotted doses might be because of inclusion of 15th day of the month when many states might have received their quota for the 2nd fortnight of the month. However there is no data for the 2nd fortnight of the month to conclusively establish this proposition.

For “other than govt of India channel”

As per the new liberalised vaccine policy states were allowed to administer vaccine 18-44 by procuring vaccine through “other than govt of India channel”. Alongside state government, private players also participated in this population bracket of vaccine administration. Centre released data on number of vaccine allotted to state. Column II mentions the vaccine doses available for the respective states for the month of May’21. Maharashtra, Kerala, Uttar Pradesh and West Bengal are the states which have administered fewer doses to this section of population vis-à-vis doses allotted meaning that either they weren’t able to procure vaccines in time or there were logistical or administrative constraints in vaccine administration. Again because of lack of data nothing could be conclusively deduced.

States showing higher number of vaccine administration than their allotted share could be because of the following reasons:

First, population under 45 years of age with co-morbidities was already eligible for vaccination as they fell under the “priority group” and were therefore being administered vaccine under “government of India” channel. Since there is no separate data to actually distinguish between the two section i.e. 18-44 with co-morbidity & 18-44 without co-morbidity, hence no substantive conclusion can be arrived at for this disparity in data.

Secondly, according to centre’s affidavit the entire stock of 2 Crore (20 million) vaccine available to the states must be just 25 % of the vaccine production. The other 2 Crore vaccine would be available to private market. So it is possible that private hospitals procured vaccines from SII and Bharat Biotech and administered them. Because of Lack of data on vaccine production by private hospitals there’s no clarity on this front as well.

However, one state stands out for its degree of deviation. Delhi administered almost threefold number of vaccines than what has been shown to be allotted to them under Column II. As mentioned above maybe many private hospitals in Delhi were able to procure large quantity of vaccines from manufacturers. This highlights yet another concerning trend. Private hospitals in large cities will be able to buy large quantities of vaccine to cater to the rich population who can readily pay the price asked by them since there is no regulation at the end of price of vaccine asked by hospitals. Professor Ramakumar, Centre for Study of Developing Economies of Tata Institute of Social Sciences rightly observes that putting the private player working with profit motive and states having constitutional duty to protect health of its citizens doesn’t reflect a rational or equitable policy.

Frightening Opaqueness

There is no data on distribution of vaccine in the 2nd half of the month of May however closer analysis of the vaccine administration data might reveal few things which stand out in this opaque vaccine policy framework.

STATENumber of people vaccinated from 16th to 30th May’21 in the age group of 45+Total number of vaccine doses administered during 1st to 30th May’21 for all age groups
Tamil Nadu4,56,72124,95,055
Uttar Pradesh13,22,64751,34,670
West Bengal6,42,84532,73,657
Madhya Pradesh2,78,99226,16,165
Table 2

Going by the trend in Table 1 and seeing close to 100% administration of these doses we can presume that the doses supplied to the states will be closed to the number of doses administered in this second half of the month i.e.16th to 30th May (Column II of Table 2).  Thus a comparison between COLUMN V of table 1 and COLUMN II of Table 2 shows an obvious reduction in the supply of doses to states.

The above graph highlights a consistency in declining number of vaccine administration for the age group of 45+ across all states. Since the vaccine for this group is provided by the centre itself thus it may infer a reduction in such supply. Few states in the list stopped vaccination for few days in lieu of cyclone Yaas and cyclone Tauktae hence this might explain the reduction in 2nd half. However, given the lack of pace in vaccination drive after cyclones cessation buttresses the point of limited supply. The above data also lends support to the argument of few states that, in the latter part of May, complained of vaccine shortage but were disregarded as mere political rhetoric. 

A caveat is attached herein that such conclusion is based on the single source of data that is available in the public domain. This crisis of opaqueness doesn’t seem to be subsiding anytime soon. Centre government released a communication to the states on number of doses they will be receiving in June. The communication was not put in public domain. Even some states refused to share the data on number of doses being received by them. This highlights the degree of non-accountability persisting in the current crisis wherein few bureaucrats and ministers come and throw numbers in absolute terms without displaying trends and policy decision in the public domain.

“Darwinian approach to federalism”

Martin O’Malley, former Maryland governor, in response to Trump administration’s move of dumping responsibilities on the state said that “This is a Darwinian approach to federalism; that is states’ rights taken to a deadly extreme,” Recently, Finance minister Nirmala Sitharaman tweeted that Health is a state subject and the liberalised vaccine policy has been implemented to give this leeway and flexibility. O’ Malley’s description might fit well into our Indian context.

Indeed health is a state subject but can the vaccine acquisition, distribution and administration in theory and practical terms be presumed to be strictly falling under this subject. The question is indirectly under consideration of the Supreme Court in its suo motu cognisance on the supply of essential supplies.

Entry 29 in the Concurrent List provide power to to centre ensure “Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants.” Vaccines are currently the best preventive weapon we have in our arsenal. Despite health being a state subject, central government has always been presumed to be a key factor in designing health policies and programmes. This designing is not just limited to share determination of vaccines or showing dynamism in a form of knee jerk reaction. But rather faming budgetary, institutional and capacity framework to ensure equity in distribution of health supplies especially vaccines.

India’s federal institution is not the only one that came under the hammer during the pandemic. In US when the demand for essential supplies overwhelmed states the governors expresses their anguish that they were left competing against each other since there was no coordination at the federal level. Australia faced many constitutional challenges in the pandemic. One among them was on the issue of Federalism. Australia responded by establishing a “National Cabinet”, an intergovernmental decision making body consisiting of Prime Minister and premiers and Chief Ministers of State government. The group is responsible to coordinate national level action on health issues related to COVID-19 including vaccine. Canada’s premier public health technical body, Canadian Institutes of Health Research, is set up under its Act of Parliament. The Act specifically requires the body to consult, collaborate and form partnerships with provinces. The Canadian Act also recognises that public health research must be unique to each province, much unlike the top-down system in India

Germany portrayed how a federal structure is supposed to work in curtailing health crisis which doesn’t recognise borders of states. For each new mandate released by Germany, the wording was unanimously agreed upon by all 16 federal states leaders and Chancellor Merkel.

A scholar made a veracious observation that the decentralisation in the times of crisis illustrates the “price of federalism”. The way politic leaders have approached federalism has had critical consequence on citizen’s life. The observation though made in reference to US perfectly fits the Indian mould where hundreds and thousands of life depend on decision to centralize or delegate power.

Centre’s opaque vaccine policy has constituted a new design of federalism in India wherein there is no transparency; state’s obligations are stretched to the extreme; absence of accountability and party affiliation dictating response of states.

In a study conducted in US, authors concluded that amid the current deep divide in US politics, it’s possible to forecast public health outcomes based on whether a state is led by Republican or Democrat. India is tredding on the same path wherein demand for vaccine by the state can be predicted based on whether it is BJP ruled or not. This was evident when Kerala Chief Minister wrote a letter to 11 non BJP ruled states to put a pressure on the central government.

The difficulties inherent in India’s federal structure do not excuse it from non-compliance, but lack of coordination between central and state governments can limit India’s ability to meet its statutorily, constitutional and moral obligations towards its citizens. How long this circus is going to continue is something we don’t know until we know.

Note: The author has deduced the data by compiling daily number of doses. Data was cross examined after compilation however human error cannot be ruled out hence the above data should be looked at with the margin of 5 % on either side.


Shashank Pandey

Shanshank is one of the founders of The Law Culture. He is a final year student at RMNLU. He is primarily interested in Intellectual Property Rights, Labour Laws, Arbitration and Constitutional Law.

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