New Delhi, May 10 (ILNS) The Supreme Court on Thursday will hear a plea, seeking directions to quash the “Liberalised Pricing and Accelerated National COVID-19 Vaccination Strategy” and to declare Covishield vaccine as an Essential Commodity.
(Chirumamilla Kranthi Kumar v Union of India & others)
The Bench of Justices DY Chandrachud, L Nageswara Rao and S Ravindra Bhat will hear the plea, filed by Chirumamilla Kranthi Kumar, alleging that the Serum Institute’s profiteering and vulturous pricing shouldn’t be allowed to remain and a cap of ‘cost price’ for the time of the pandemic should be imposed, based on the following points:
Firstly, the Serum Institute of India neither invented the vaccine, nor is paying any substantial royalty to the inventors for the time of the pandemic. They obtained sub-licence to make vaccine easily available to lower and middle-income countries like India at no profit or minimal profit pricing and it was alleged that the Serum Institute is violating the policy.
Secondly, the profiteering of the Serum Institute of India at jacked up prices to the tune of over 380 percent of the already profit-making prices is severely limiting the access to the life-saving vaccine in the midst of the pandemic and is causing consumer harm and is therefore, denying the Right guaranteed by Article 21.
Thirdly, the Clause 8(ii) of the “Liberalised Pricing and Accelerated National Covid19 Vaccination Strategy” further allowed the vendors to choose the prices at which they would sell 50 percent of the vaccines produced at a price other than that which is sold to the Central Government (Rs 157.5), such discriminatory order should not be allowed to sustain.
Fourthly, the discriminatory Vaccine Pricing strategy of the Union government will drain the coffers of the already incapacitated state governments during the pandemic and would impact the state’s ability to utilise the money on critical medical infrastructure.
Fifthly, it is necessary and expedient that the Union Government declare the Covishield vaccine as an essential commodity and to announce an affordable and no profit price invoking the powers under Section-3 of the Essential Commodities Act, 1955 for increasing the supply at fair prices.
Sixthly, the Serum Institute is holding a dominant and monopolistic position in the COVID-19 vaccine market of India by holding over 80 percent of the market share, whereas same vaccine is being sold in developed markets like the European Union (EU) for 2-3 US Dollars, which is considerably lesser than the prices sold in India.
The present petition has been filed in regard with the hiked price of Covishield vaccine by Serum Institute, Pune and suspend the operation of Liberalised Pricing and Accelerated National COVID-19 Vaccination Strategy, proposed by the Ministry of Health and also asked to appoint a fact-finding committee to ascertain the true cost of the vaccine by SII.
The petitioner prayed to declare the Covishield vaccine as an Essential Commodity and limit the pricing of Covishield vaccine to its cost price, as mandated by the inventor Oxford University in its Intellectual Property policy.
The petitioner, while calling the pricing announced by SII discriminatory, Rs 400 and Rs 700, further prayed to impose a price ceiling of Rs 157 and make it available to both Government and Private hospitals.
Presently, when the whole world is suffering from COVID-19, the Jenner Institute of the Oxford University has invented and developed a vaccine (ChAdOx1), which can eliminate the pandemic and selflessly sacrificed its Intellectual Property for the benefit of global public at large.
Later, the Serum Institute of India has obtained a sub-licence from the licensee AstraZeneca to manufacture one billion doses of the aforementioned vaccine for low and middle-income countries at no profit during the pandemic with a commitment to provide 400 million doses by the end of 2020, submitted by the petitioner.
The petitioner further revealed that the CEO of SII had admitted the fact that they are making the Oxford vaccine at a profitable price of Rs 157.5, which are being given to State/ provincial governments of India at Rs 400 per vial and to other Non-Governmental entities like private hospitals at Rs 600 per vial.
Liberalised Pricing and Accelerated National COVID-19 Vaccination Strategy
The Union Government, in collaboration with the state government, has been working to ensure the maximum number of Indians are able to get the vaccine in the shortest possible time.
The petitioner called the said strategy to be discriminatory and further highlighted that the Serum Institute’s profiteering and vulturous pricing shouldn’t be allowed to remain and a price cap of ‘cost price’ for the time of the pandemic should be imposed, based on the following premises.
The petitioner, through a PIL, sought the following directions:
a. Issue a writ in the nature of mandamus or any other appropriate writ or direction or order to quash the “Liberalised Pricing and Accelerated National COVID-19 Vaccination Strategy” and to declare Covishield vaccine as an Essential Commodity or pass any other order for limiting the pricing of Covishield vaccine to its cost price as mandated by the inventor Respondent-7 Oxford University in its Intellectual Property policy concerning the (ChAdOx1) vaccine, which is manufactured in India by the sub-licensee Serum Institute of India(SII) in the tradename of Covishield and declare any non-compliance as violative of Articles 14, 21 and 39 of the Constitution and de hors Section 3 of the Essential Commodities Act, 1955.
b. Issue a Writ in the nature of Mandamus or any other appropriate writ or direction or order for correcting the discriminatory pricing of Covishield as announced by SII i.e 400 INR and 700 INR by imposing a price ceiling of Rs 157 invoking the special powers under Clause19 of the DPCO, 2013 and make the vaccine available even to the State Governments and private hospitals at Rs 157, the price at which the Union Government of India procures till the pandemic lasts or appoint a factfinding committee to ascertain the true cost price of the Covishield vaccine and mandate that the vaccine be sold at such ascertained price with a cap on profits during the time of pandemic.
c. Issue a Writ in the nature of Mandamus or any other writ for correcting the monopolised market and issue compulsory licences to other vaccine manufacturers so that the sub-licensee SII cannot resort to market and pricing distortion.
d. Pass any other or further order/s or directions as this Hon’ble Court deems fit and proper in the attendant facts and circumstances of the case.
In the interim the petitioner has asked the Court to;
(a) Issue a status quo order on the pricing of the Respondent-6’s vaccine Covishield as the revised hiked pricing would come into effect from the May 1, 2021.
(b) Issue an order to suspend the operation of the “Liberalised Pricing and Accelerated National COVID-19 Vaccination Strategy,” published by the Respondent-2 Ministry of Health. ILNS/KR/RJ