India’s Covid-19 vaccination policy must protect the constitutional rights of its citizens

by | May 25, 2021

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About Amala Govindarajan and Ananya K

Amala Govindarajan is a 3rd year BA LL.B (Hons.) student at School of Law, Christ University, Bangalore with a keen interest in intellectual property law and technology law. Ananya K is a 3rd year BA LL.B (Hons.) student at School of Law, Christ University, Bangalore with a keen interest in competition law and intellectual property law.

The Supreme Court of India has found the Government’s vaccine policy, released on 21st April 2021, to be prima facie detrimental to the right to public health and equality. This policy has expanded the vaccination drive to people in the age group of 18-44 years and requires mandatory online registration on the Co-WIN platform (app/website).

Unlike the previous phases of the vaccination program, the policy does not allow the option of walk-in and cohort registration for those without Internet access. This has given rise to a plethora of problems due to the low level of digital literacy in rural areas and has deepened the existing urban-rural divide in India. Studies show that the broadband penetration rate in rural India is a mere 29.1% against the national average of 51% in 2020.

The Supreme Court took suo moto cognizance of the vaccination policy in the matter of In Re: Distribution of Essential Supplies and Services during Pandemic. Recognising that the requirement of mandatory registration on the Co-WIN platform would exclude a large class of citizens, the Bench questioned the Government as to whether alternative mechanisms are available for those persons with no access to digital resources. The Government submitted that people with no digital access can take the help of family, friends, NGOs, and Gram Panchayats to register online.

While the Supreme Court is yet to decide on the feasibility of this mechanism, it is exclusionary in reality. There is an acute shortage of vaccines and slots become available on the Co-WIN platform only at irregular intervals. Further, data on vaccine slots on the Co-WIN platform is available through a public API, used to create tools like instant alerts and browser extensions which notify social media groups as soon as slots become available. Those who have access to technology, including the internet, thus book slots ahead of those who are poor and disadvantaged. It has also been reported that those in urban areas have been booking slots opening up in nearby villages, taking away the stock designated for rural people. The class and urban-rural divide, already present in the previous phases of the vaccination drive, is thus further aggravated by the new vaccine policy.

Article 14 of the Constitution guarantees to all the right to equality before the law and equal protection of the laws. The Supreme Court in Navtej Johar and Joseph Shine laid down the test for Article 14 as one of substantive equality. The Court must consider social realities and ‘the impact of the rule or provision in the lives of citizens’. In light of this, the vaccine policy violates Article 14 by requiring even those without Internet access to mandatorily register online. To be consonant with Article 14, the policy must instead be accessible to all with both online and offline options.

Inequitable distribution and inaccessibility to vaccines under the policy is also violative of the right to health under Article 21.  Further, the Co-WIN platform allows for registration using one of 7 identity proof documents, including Aadhaar, voter ID, and passport. The National Health Authority has been issuing National Health IDs for those who are registering using Aadhaar. The issuance of National Health IDs is one of the objectives of the National Health Data Management Policy, 2020. Using data collected for the purpose of vaccination on the Co-WIN platform to issue National Health IDs violates the principle of purpose limitation. This principle requires that personal data should be collected and processed only for a specific purpose agreed to by the data principal. Rule 5(5) of the Information Technology Rules, 2011 provides for purpose/use limitation.

Additionally, the Co-WIN platform does not have an independent privacy policy and provides no information on data retention and accessibility. The protection of health data is an inherent and inalienable part of the right to privacy. In a recent interim order, the Karnataka High Court reiterated that sharing a citizen’s health data without their consent violates the right to privacy under Article 21. Thus, in addition to the right to equality and health, the vaccine policy is also violative of the right to privacy, guaranteed by Article 21.

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