Nazia Praveen v. Government of NCT of Delhi

1. This Public Interest Litigation has been preferred with the following prayers: “a) Issue a writ of mandamus to the Respondents directing the Respondents to formulate a policy to ensure that all persons who have been given 1st shot of Covid vaccine should be give 2nd dose with priority and more specifically on different days, timing and is with the people taking first dose then in a separate line such that they are not put to inconvenience. In this manner chaos and spread of Covid will be prevented and vaccination will be done smoothly. b). Direct the respondents to issue directives such that vaccination drive for auto drivers, bus drivers, taxi drivers, ambulance drivers and people involved in public transport is given priority. c). Direct the Respondent no.1 to provide status of vaccine doses ordered for drive starting 1st May 2021 and their delivery details. d). Direct the Respondent no.2 to issue directives to the manufacturers and suppliers of covid vaccine to supply vaccine to Delhi on priority in terms of delivery given the covid situation and crisis. e). Direct the Respondent no.2 to frame a policy on vaccine distribution across the country because Delhi does not need another problem like the oxygen issue between centre and Delhi. f). Direct the respondents to discuss with the manufacturers the issue of bottling of vaccines at local level such that the entire vaccination programs is localized, attains pace and desire results. g). Direct the respondents to direct the vaccine manufacturers to disclose the formula and open the source code such that other capable manufacturers are able to manufacture vaccine in order to cater to the need of the country. h). Direct the respondents to waive clinical trials of foreign vaccines in terms of rule 101 of the New Drugs and Clinical Trials Rules, 2018 such that all available foreign vaccines are available for usage. i). Dispense with the registration for vaccination on website and application for all poor vaccination and EWS class citizens such that they are also vaccinated besides literate population. j). Issue a writ of mandamus to the Respondents to add more vaccination centres and upgrade the infrastructure for streamlined vaccination. k). Pass any other order which this Hon’ble Court may deem fit in the interest of justice.”

2. We have heard the learned counsels for the parties and have looked into the facts and circumstances of the case.

3. Perusal of the prayer clause in the present petition indicates that the Petitioner is seeking multifarious reliefs which include inter alia a direction to the Respondents to formulate a policy with regard to vaccination, directives for giving priority to certain categories of people involved in public transport for vaccination, bottling of vaccines at local levels, disclosure of formulas, etc. by the manufacturers of vaccines. No doubt, the need of the hour is that people are vaccinated at the earliest, but it is not possible for this Court to issue a directive to prioritize the category of people mentioned in the writ petition. The concerned Departments in the Government have drawn up modalities to carry out the vaccination drive and we are sanguine that a methodology is being followed keeping in mind the class of people who require to be vaccinated on priority being the frontline workers. This Court does not have the expertise to make a classification or carve out a list of priority. Everyone cannot be given a priority and it goes without saying that a few would have to await their turn.

4. In any event these are matters of policy decision of the Government and it is not for this Court to draft a policy, which is a domain of the Government and a very complex phenomenon. Court cannot replace a better policy, for existing one. Courts can certainly examine a policy or an action of the Executive, if it is unreasonable, unfair, arbitrary or unlawful or if it is unconstitutional, but, cannot issue directions to frame a policy in a particular manner. There is a clear separation of power in the scheme of the Constitution of India and the duty to formulate policy is entrusted to the Executive. We are thus not inclined to exercise our powers under Article 226 of the Constitution of India to direct the Government to frame a list of priorities in a particular fashion. Predominant role of the Court is to expound and interpret the law and not to legislate. In this view, prayers relating to formulation of a policy for prioritization cannot be allowed.

5. As far as the reliefs seeking information on the formula and source code from the manufacturers of the vaccines are concerned, it is for the Petitioner to resort to the appropriate remedies available in law to seek such information. A Public Interest Litigation cannot be used as a platform to collect information and that too as sought by the Petitioner i.e. disclosure of the formulas for manufacture of vaccines.

6. In any event, as far as the reliefs sought in prayers (d) to (f) are concerned, we are informed by the learned ASG that the issues are currently pending before the Hon’ble Supreme Court. Therefore, it is not appropriate for this Court to entertain the said prayers.

7. It is, however, open to the Petitioner to make a comprehensive representation to Respondents No.1 and 2 and raise the issues agitated in the present petition. Needless to state, if any such representation is received by the Respondents, it shall be decided in accordance with law and applicable policies.

8. With these observations, the writ petition and the application filed herewith are disposed of.

CHIEF JUSTICE JYOTI SINGH, J MAY 18, 2021 yg