Covishield second dose cannot be administered before 84 days: Kerala High Court sets aside single-judge verdict

The Kerala High Court on Friday upheld the 84-day interval mandated by the Central government between the first and second does of Covishield vaccine (Kitex Garments Ltd. v. State of Kerala)..A Division Bench of Chief Justice S Manikumar and Justice Shaji P Chaly allowed an appeal filed by the Central Government and set aside a single-judge verdict which had granted liberty to individuals, who pay for Covishield vaccine, to choose whether to get the second dose any time after four weeks from the first dose but before the 84-day interval..The Court, after due consideration of the facts submitted before it, concluded that the decision taken by the government was on the basis of expert opinion and Constitutional courts cannot substitute their wisdom."Once it is established that the Government have acted on the basis of such advice, it is for the Government to decide how to go about it, in order to get rid of the emergent COVID-19 Pandemic situation, which thus means, such expert advice, on the basis of scientific study, cannot possibly be substituted by a judgment of Constitutional Courts, especially when no materials are produced before the Court to show that the expert and scientific advises given to the Government are hasty, bad or ill advised," the judgment said..Regarding the distinction drawn by the single-judge between paid and free vaccines, the Court opined that regardless of how a vaccine is acquired, it is still managed by the Central Government through the CoWIN portal."It is equally important to note that even though the vaccine can be purchased by the organisations through hospitals, and administer the same, the control and regulation of the vaccine is still with the CoWIN Portal managed by the Government of India, which itself is a clear indicator that no citizen can be permitted to activate the process of administering the vaccine on individual interest," the Court said..With today's verdict of the Division Bench, the second dose can only be administered after the completion of the prescribed 84-day period..The appeal by the Central government had said that the single-judge decision was against the settled position that courts do not meddle with policy decisions of the government."The precedent if allowed to stay would set at naught the national policy for administration of vaccine and would cause serious prejudice for the larger segment. The judgment would militate against the settled position that in matters related to government supported by scientific study, the Court shall not meddle with or substitute its view with the view of the administration," the plea had contended..Justice PB Suresh Kumar had, on September 3, passed orders allowing early administration of the second dose in case of paid jabs, noting that the fact that vaccination is voluntary indicates that the interval required by the government can only be considered advisory.The single-judge's order was passed on a plea by Kitex Garments Limited seeking to administer the second dose of COVID vaccine to its employees without waiting for the 84-day time gap between two doses as they had already purchased sufficient stocks of the vaccine. "The fact that the vaccination is voluntary and there is no compulsion on anyone to accept the same is declared by the Government of India in the website of the Ministry of Health and Family Welfare. If that be so, the requirement to administer two doses of the vaccine and the time interval between the two doses for better protection from infection can only be considered as advisory," Justice Suresh Kumar had said.The single-judge had passed the order keeping in mind the fact that the Central government had relaxed the interval for Indian government officials with commitments abroad, persons needing to travel abroad for studies or employment, those participating at the Olympic Games etc.Justice Kumar had also directed the Centre to immediately make necessary provisions in the CoWIN portal, so as to enable scheduling of the second dose of the Covishield vaccine after four weeks of the first dose, for those who want to accept the second dose after a period of four weeks in terms of the initial protocol of the vaccine..The Central government in its appeal stated that the dose interval has been revised several times based on emerging scientific evidence with the guidance of the National Expert group on Vaccine Administration for Covid-19 (NEGVAC).The appeal challenged the approach of the single-judge in drawing a comparison between the right of an individual to choose early protection over best protection on the ground that it would lead to adverse consequences in the larger public interest.Any insistence to avail the second dose prior to the scientifically-decided 12 weeks will actually impede the development of immunity, the plea claimed.Thus, attempting to evaluate the issue which is to be viewed in a scientific angle, more as an issue falling under Article 14, would result in a social disaster, it was submitted..The Court concurred with the Central government especially considering the fact that the national vaccination policy was formulated in the backdrop of a disaster. As such, the benefits accrued by the policy for all citizens as a unit must outweigh the benefits any particular class of persons can claim."once the provisions of the Disaster Management Act, 2005 is invoked by the Government, the individual freedom and interest may have given way to the interest of the citizens of the country at large, failing which, the Government would not be in a position to manage, co-ordinate, and implement the measures and activities taken for protecting the rights and liberties of the citizens at large, rather than self-centric and individual protection of the rights," the judgment stated..[Read Judgement]