[COVID-19] Chhattisgarh High Court directs State to reconsider decision to prioritize vaccination for Antyodaya (poorest of poor), BPL persons

The High Court opined that prima facie, the sub-classification of persons to be vaccinated on the basis of their 'financial status' alone "may not be correct or sustainable."
[COVID-19] Chhattisgarh High Court directs State to reconsider decision to prioritize vaccination for Antyodaya (poorest of poor), BPL persons
Covid 19 vaccine

The Chhattisgarh High Court on Tuesday directed the State Government to reconsider its April 30 circular which prioritized the COVID-19 vaccination of Antyodaya card-holders i.e. the "poorest of the poor" over others of relatively better financial standing.

However, the Bench of Chief Justice PR Ramachandra Menon and Justice (Parth Prateem Sahu directed the State to fix reasonable ratios of vaccines that may be allotted to various groups based on factors such as vulnerability, chance to spread the disease and the number of eligible persons in the group.

The Court opined that prima facie, the sub-classification of persons to be vaccinated on the basis of their 'financial status' alone "may not be correct or sustainable."

"We are of the view that the State Government shall fix a reasonable ratio of allotment of vaccines to the 'Antyodaya Group', the persons belonging to the 'Below Poverty Line' and the persons belonging to the 'Above Poverty Line', with reference to all the relevant aspects including the vulnerability, chance to spread the disease and the number of eligible persons in the group," the Court ordered.

The Court, therefore, directed the State Government to have a discussion of the Secretaries of the relevant Departments at the higher level and to fix the ratio as above and distribute the vaccines in the third phase of vaccination (for the age group of above 18 and below 45 years) in an equitable manner.

"Implementation of Annexure P/1 order dated 30.04.2021 issued by the Additional Chief Secretary, Department of Health and Family Welfare, Government of Chhattisgarh, stands modified to the said extent and shall be subject to the ratio of allotment to be made as above. This shall be done and given effect to forthwith."

All the same, the Court also clarified that special measures may be taken when it comes to the vaccination of less-privileged citizens, without compromising the rights of others.

"(For) the poor, illiterate and less fortunate citizens, a scheme has to be formulated by the State by earmarking appropriate share of the vaccines to them as well and set up 'Help Desks' providing spot registration and to administer vaccines to them, without compromising the right of the other segments who are entitled to have equal treatment with regard to the right to life," the order said.

The Court was considering public interest litigation petitions filed against an April 30 circular concerning the third phase of COVID-19 vaccination (for the 18-45 age group).

By the said circular, the State Government had stated that vaccinations would first be given to Antyodaya Card Holders i.e. poorest among the poor, secondly to the people belonging to the group 'Below Poverty Line' and thirdly to the people belonging to the 'Above Poverty Line'.

The petitioners challenged such sub-classification as being beyond the State's competence since it deviated from the Central Government's vaccination policy. The petitioners also contended that it would violate Article 14 of the Constitution (right to equality).

Advocate General Satish Chandra Verma, appearing for the State, defended the circular by arguing that it was felt necessary to prioritise the vaccination of poorer persons, who mostly reside in remote areas and who are relatively illiterate or unaware about COVID-19 and the necessity to register for vaccination.

The Court, however, responded by stating that while the object of steps taken to benefit poor cannot be doubted, such steps have to be conformity with the constitutional mandate.

"If any steps are taken by the State Government to have the benefit extended to such people as well, the object cannot be doubted. But, such step has necessarily to be in conformity with the constitutional mandate and in tune with the guidelines issued by the Central Government at the national level. Prima facie, sub-classification with reference to the 'financial status' alone as now ordered may not be correct or sustainable."

The Court proceeded to raise the following questions that emerged in the wake of the State's April 30 circular:

1. Whether the State government has any power to decide on its own or tinker with the vaccination policy issued by the Central Government?

2. Whether, even if any such power is there, can the April 30 order be regarded as a 'policy decision' of the government, having no Cabinet nod in this regard declaring the policy?

3. How the sub-classification in the order dated April 30 on the basis of the financial status of a citizen, to get his life protected, is sustainable in the eye of law?

4. Whether or not it is necessary to have sub-classifications with reference to the areas where the maximum spread of the disease is located or with reference to the population or the chance to get infected more or with reference to any particular place or area or group where more vulnerable people work/reside and the chance to get infected?

5. Since the Covid-19 pandemic can be conquered only with "maximum vaccination within the shortest possible time", is it not necessary to provide/procure more vaccines and administer the same at the earliest?

6. Is it not necessary to have a re-look on the vaccination policy in the backdrop of the second wave of Covid-19 pandemic and particularly with reference to the third phase vaccination (for the age group above 18 years and below 45 years)?

The matter was posted for further consideration on May 7.

This case was taken up by the Court along with a batch of other matters concerning COVID-19 management that is being heard by the High Court.

Advocate Prafull N Bharat appeared in the matter as Amicus Curiae. AG Satish Chandra Verma with Deputy AG Chandresh Shrivastava and Deputy Government Advocate Vikram Sharma appeared for the State authorities.

Assistant Solicitor General Ramakant Mishra appeared for the Central Government.

Advocate Himanshu Choubey appeared party-in-person for his intervention plea, which had challenged the April 30 circular.

Advocates Kishore Bhaduri, Sandeep Dubey, Palash Tiwari, Devershi Thakur, Goutam Khetrapal, Shivang Dubey, Raj Bahadur Singh, Rishi Rahul Soni, Shakti Raj Sinha, Sameer Singh, Atul Kesharwani, Rohitashva Singh, Virendra Verma, Nishi Kant Sinha, Curtis Collins, Ansul Tiwari, Soumitra Kesharwani, Anumeh Shrivastava appeared for other intervenors.

[Read Order]

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