Accessible Healthcare in India & The Challenges of The COVID-19 Pandemic

By Aditya Pratap, Lawyer in Bombay High Court

In 2014, the Delhi HC directed the Government of NCT of Delhi to draw up a scheme under which Hemophilia patients were given free treatment by the government. The family of the petitioner was unable to afford the expressive treatment and the court came to their aid.

In yet another case from 2014, the Delhi HC supported the six lakh per month treatment of a minor, belonging to the economically weaker section of society, suffering from Gaucher Disease.

Directing the Government of NCT of Delhi to discharge its constitutional duty, Justice Manmohan stated that “Government is bound to ensure that poor and vulnerable sections of society have access to treatment for rare and chronic diseases.”

Public Health challenges

In the same spirit, in Navtej Singh Johar v. Union of India, the court held that the right to health ipso facto entitles individuals healthcare that gives everyone an equal opportunity, including non-heteronormative individuals who are excluded in society.

The court, while referring to a UNAIDS report, recognized the stigma and discrimination that healthcare providers may suffer from, which in turn denies individuals the access to healthcare they need to fight the prevalence of high HIV rates.

On the other hand, India’s position in providing public healthcare needs improvement. The Lancet has already found that India ranks 145th among 195 nations in terms of access to healthcare and treatment, along with the quality of treatment.

Moreover, the deprivation of a healthy environment and medical treatment in prisons is also well documented. Last month, the SC directed the government to take steps to decongest prisons on account of the second wave of the COVID-19 pandemic. 

More recently, the Orissa HC has directed the state government to decongest prisons for it is a “serious risk to the health and safety of prisoners as well as jail staff.”

Therefore, it is clear that the right to medical treatment and healthcare is a well-established right under the encompassing umbrella of the right to life under Article 21 of the Indian Constitution. The question then is – How are the objectives of this right achieved in state policy?

“Differential pricing” of vaccines and the right to affordable healthcare

In a recent order, the three-judge bench of the SC, composed of Justices DY Chandrachud, L Nageswara Rao and Ravindra Bhat, criticized the Liberalized Vaccination Policy (LVP) that was introduced by the Central Government.

The first point of criticism was the Center’s policy of pre-fixing the costs of 50% of the total procured vaccine doses, leaving no room for the State Governments to negotiate on behalf of themselves. 

The SC noted that the Center’s justification of allowing manufacturers to successfully negotiate high-priced doses, which basically relies on competition in the market, is a flawed and doubtful justification.

Moreover, the Center’s affidavit argues that the public will not be affected by the LVP because the State Governments have made public promises to vaccinate. This reasoning is circular and fails to note that LVP restricts the State Governments to fulfil that very promise.

The SC found that the policy proposed could be used more effectively to negotiate lower prices. Here, the Center’s unique position as a “monopolistic buyer” was acknowledged as untapped potential.

Compulsory licensing as a solution was also brought up. The Center’s response was meagre, stating that the powers in the Patents Act, 1970 remain the “last resort.” LawZilla has discussed and supported compulsory licensing as a response to the COVID-19 pandemic. Read more here.

The Digital Divide in the vaccination policy

Another serious concern that has pervaded public discourse is the point of digital vaccination i.e the legitimacy of the use of the CoWIN portal for achieving universal vaccinations in the country.

The three-judge bench noted various studies and reports, including those by TRAI and NSO, to conclude that there exists a clear “digital divide” in India, particularly between rural and urban areas. 

The court noted scathingly that – “A vaccination policy exclusively relying on a digital portal for vaccinating a significant population of this country … would be unable to meet its target of universal immunization owing to such a digital divide.”

In response to the Center’s affidavit, the SC issued directions with the objective of diminishing the digital divide. The CoWIN platform’s inability to provide access to persons with visual disabilities was also criticized. 

Another important facet of this problem is the possible use of Aadhar-based Facial Recognition Technology to provide vaccination slots to individuals. This has been criticized by Human Rights organizations like the Internet Freedom Foundation and individuals alike.

The arguments raised are manifold – one of unchecked pursuit of government surveillance with its own chilling effects, and the overreach over individuals’ right to privacy. The failure, exclusion and inaccuracy of Aadhar-based food welfare schemes was also argued.

Conclusion

There are many problems that are unfolding slowly, with regards to the Central Government’s Liberalized Vaccination Policy. 

These problems were recognised and change was effected after Prime Minister Modi’s speech on June 7, 2021. 

For one, the Central Government undertook to provide 75% of the total procured vaccine doses instead of 50%. However, there still remain unaddressed problems like the  “reservation for the rich.”

It seems like the only way forward is for the Central Government to take over the remaining 25% of procurement and make vaccines free for all. “A little tweak will not help; what we need is an overhaul.”

About the Author – Aditya Pratap

Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at aditya@adityapratap.com.

This Article is made by Aditya Pratap in assistance with Ambuj Sachan.

Cases argued by Aditya Pratap can be viewed here.

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and how they may affect a case.

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