Legal View: COVID-19 Vaccination in India

Deergh Uppal

Vaccines usually take years to develop, however in case of COVID-19 vaccines, it was done with an astounding speed of just 10 months. As surprising the time limit of the vaccine is, it is not surprising for the only reason being the vaccine was made in a haste, hence many SOP’s were not conducted.

Hence, the present vaccines could be slightly unreliable. Due to this a major question arises about the liability of the vaccine manufacturers and their distributing agencies. For example- by injecting the vaccine shot, the volunteer eventually suffers from paralysis. The following article will help you to understand the liability of the vaccine manufacturers preparing to distribute their respective vaccines shots.

Article 21

Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The right to receive affordable care, as reiterated by the Supreme Court in a Suo moto case relating to the improper treatment of patients inflected by COVID-19, naturally requires the inviolable right.

The apex court had held the state responsible for making arrangements to cap the fees imposed on incoming COVID-19 patients by private hospitals and noted that even if one managed to survive COVID-19, it is the high cost of care which will put the patient or their family members in a financially compromised situation.

The right to health is a guaranteed constitutional right for an Indian resident, since it is a branch of the right to life provided by our Constitution, which also encompasses within its ambit, the right to free vaccination. In the 1996, this issue was addressed in the matter of Samity & Ors, Paschim Bangal Khet Mazdoor. Vs State of Bengal & Ors, whereby the Supreme Court has ruled that the primary responsibility of a state includes the government’s obligation to provide its people with sufficient medical facilities.

It is a prevalent opinion among many people that India must provide the vaccines for free by furthering its commitment as a welfare state, as taking the vaccine is not an individual option, but a mandate for the country’s overall security.

There is also an anticipation that prioritizing the administration of the vaccine could contribute to arbitrariness at the behest of the bureaucracy.

It is well-recorded that it is the poor who end up with the short end of the stick in such circumstances.

Therefore, in order to guarantee that the supply and accessibility of the vaccine is completely equal, it will be wise to dispense the vaccine to everybody free of cost.

The WHO Constitution of 1946, the Universal Declaration on Human Rights of 1948 and the International Covenant on Physical, Social and Cultural Rights of 1966 all enshrine the right to health, and countries, including India, which have ratified these treaties and conventions, are committed to maintaining this right in an equitable way so that everyone can enjoy equal opportunities.

Despite being home to one of the world’s biggest vaccination systems, it is bound to be a challenging task to vaccinate a billion people for the first time, and the government would have to negotiate tough administrative, social and financial terrain.

While the purpose behind the free vaccine guarantees is laudable and in line with the values enshrined in our Constitution, the plausibility of such open-ended claims across the lens of ground realities needs to be tested.

In this case, the ultimate approach that can be applied for free pan-India vaccination will be one that can essentially delete a leaf from the practice playbook that was implemented for eradicating smallpox and polio.

Contract of Indemnity – A “contract of indemnity” is considered as contract under which one party agrees to save the other from damages incurred to him by the actions of the promisor himself or by the conduct of some other person.

IllustrationMr. X offers to indemnify and hold Z harmless in front of a jury or judge from a loss or cost as a result of Z’s fault or potential responsibility on all damage claims.

In settlements between tenants and land owners, indemnity arrangements are very popular. Inhabitants agree to indemnify the owners of the property against expenses or losses connected with the property being harmed, while the owners of the property claim responsibility for something that may be harmful or unsettling.

For instance, if the dweller gets injured in the property accidentally but if any part of the property is unsafe and is very likely to cause some damage and injury to the occupant, the property owner is compensated for loss if the dweller gets injured in the property accidentally but if any part of the property is dangerous and is very likely to cause any damage and injury to the occupant and the owner is intimated from time to time about the same; a mild indemnity provision would not preclude the dweller from prosecuting if some disrepair triggered the mishap

Applying it in current scenario – Currently the government has not given any indemnity to any vaccine manufacturers hence they can be held liable under many laws in India. The Serum Institute chief executive Adar Poonawalla has reportedly said that the government should give indemnity to vaccine manufacturers as to protect them from any frivolous cases and initially protect them from any liability.

Consent – To overcome the problem of indemnity and liability the vaccine makers often make the patients sign a consent form which protects them from any liability and prevents people from filing medical negligence cases. Though this might be very lucrative and effective way for the vaccine markers to be saved from any law suit but it will be problematic to the person who may eventually have to undergo an ordeal.

Conclusion – Remarkably, considering the pace with which vaccines were made in record time amid the COVID-19 pandemic, many countries have shifted liabilities to the government such as in US, the UK, Canada, Singapore, EU and WHO-led Vaccines.

They provide immunity to manufacturers from lawsuits and will bear the compensation burden. The U.S government has granted companies like Pfizer and Moderna immunity from liability if something unintentionally goes wrong with their vaccines.

It is very rare for a blanket immunity law to be passed and pharmaceutical companies typically aren’t offered much liability protection under such law.

As far as India is concerned, a Vaccine manufacturer will be held liable for any mishaps during vaccination as the government in India has not accepted their demand to indemnify them.

The government’s purchase order with vaccine makers clearly says that companies will be liable for all adversities. The liability clause could remain the same in the case of other vaccination programs i.e. liability for any adverse effects due to vaccine lies with the company.