Who pays for alleged Covid-19 vaccine deaths?

Six years ago, on 25 March 2020, India went into an unforgettable nationwide lockdown against the Covid-19 pandemic. While deaths caused by the virus are anywhere between 5 lakh (official figure) to 500 lakh (WHO estimate), it is a much greater challenge to estimate deaths caused by collateral factors such as oxygen shortage, a hasty lockdown policy, and alleged effects of the vaccination programme.

The Supreme Court acknowledged this challenge last week while deciding on a petition filed by the kin of those who allegedly died after receiving Covid-19 vaccination. The Court directed the Union of India to formulate a no-fault compensation policy while refusing to legally attribute any individual death to a vaccine. The decision has extended Article 21 jurisprudence into the territory of mass public health interventions but left justice in the hands of executive implementation.

The case

The petitions before the Court told stories that are difficult to read in the clinical language of litigation. Rachana Gangu lost both her daughters in the summer of 2021—first her youngest, an 18 years old who died of Cerebral Venous Sinus Thrombosis three weeks after her first dose; and then her older child, a 20 year old who succumbed to Multi-System Inflammatory Syndrome shortly after. Other petitions documented the deaths of a husband in Kerala who was declared dead on the same afternoon he received his shot, a 31-year-old pregnant woman carrying twins who died of thrombocytopenia, and a 19-year-old girl who died of intracranial bleeding with no prior neurological history. 

Seeking the constitution of an independent expert medical board to inquire into such deaths, the petitioners submitted that the vaccination was effectively compelled by administrative restrictions. They pointed out that use of the AstraZeneca vaccine had been suspended by around 18 European countries by March 2021 and contended that the government withheld Adverse Events Following Immunisation (AEFI) data in violation of judicial expectations laid down in covid-19 (2022).  

The Union of India’s response to these petitions was, in purely procedural terms, entirely defensible: vaccination was voluntary; the regulatory approval process was rigorous and multilayered;  the AEFI surveillance system was functional, and its results publicly available. It submitted that scientific studies by the Indian Council of Medical Research and the National Centre for Disease Control found no direct causal link between the vaccines and sudden deaths. Those aggrieved were free to approach consumer courts or civil courts, it said, while pointing out that vaccine manufacturers enjoy no legal immunity in India, unlike in several other countries. All of this is true, and was largely accepted by the bench of Justices Vikram Nath and Sandeep Mehta.

The decision

The doctrinal architecture of the ruling rests on an expansive reading of Article 21. The right to life, the Court reiterates, is not merely a prohibition on unlawful killing. It includes the right to health and bodily integrity, and imposes positive obligations on the State—as an “active guardian of welfare and dignity” rather than a “distant spectator to human suffering”. Invoking the Directive Principles in Article 41 (on public assistance in cases of sickness) and Article 47 (on the improvement of public health), the Court held that these provisions  inform the reading of Article 21. A State that deploys its authority to inoculate hundreds of millions of citizens cannot disclaim all institutional responsibility for harm.

What makes the decision constitutionally significant is its extension of the State’s responsibility to ensure that those who bear the rare but real costs of a mass public health intervention are not left entirely without remedy. The decision clarified that although the State acted in service of collective good and was not at fault, it remains obliged to provide for individuals who were harmed through no fault of their own.

Addressing the inadequacy of remedies proposed by the Union, the Court found it ill-suited to tell affected families to approach consumer fora or civil courts. Vaccine injury claims involve complex questions of scientific attribution. It recognised that the requirement of proof of negligence in every individual case imposes an enormous evidentiary burden on families that are already grieving, already under-resourced, and already at an informational disadvantage relative to the State. The multiplicity of proceedings across different fora risks inconsistent outcomes and unequal access to relief—a concern that directly engages the guarantee of equality under Article 14. The Court’s invocation of the Motor Vehicles Act‘s no-fault compensation provision under Section 164 is instructive: some categories of harm, particularly those arising from activities the State itself sponsors or permits at scale, require swift relief without prolonged inquiry into fault.

Where the Court drew a line

There are things the judgement deliberately declines to do, and these refusals matter as much as the directions it issues. The Court shall not constitute a parallel expert body to investigate individual deaths—the National and State AEFI Committees, it holds, are adequate for that purpose. 

It accepted, as Jacob Puliyel had already settled, that the regulatory approval process was neither unlawful nor deficient, and declined to pronounce independently on vaccine efficacy.

The Court held that undertaking a scientific inquiry on individual causality determinations was neither feasible nor appropriate and left those concerns to domain experts. 

Crucially, the order includes a saving clause: paying compensation will not amount to an admission by the government that the vaccines caused harm, or that it acted wrongly in administering them. Relief and responsibility, the Court insists, are separate questions.

The judgement is careful to avoid anything that could be read as a finding that the vaccines caused the deaths or that the State acted wrongly in administering them.

A bigger picture

The comparative survey in the judgement is pointed. The Court identified myriad jurisdictions across the world which recognized the gap between mass vaccination and individual harms. In response, these jurisdictions, including Australia, the United Kingdom, Japan, and the World Health Organisation (WHO)’s COVAX initiative, instituted dedicated no-fault schemes. These are, it bears noting, broadly wealthier countries with different fiscal capacities. The absence of comparable frameworks in lower-middle-income states with large vaccination programmes suggests that India’s gap is not unusual globally. However, that does not make it constitutionally acceptable. The Court’s invocation of these models is less an argument from international consensus than a demonstration that the policy architecture is not impossibly novel—the design work has been done elsewhere and can be adapted.

From a domestic point of view, the decision might have consequences for another long-pending PIL regarding human papillomavirus (HPV) vaccines. Filed in 2012, the petition sought de-licensing of two vaccines after reported irregularities in clinical trials and alleged deaths. A Constitution Bench was constituted specifically to resolve the issue of judicial relevance of parliamentary reports submitted by the petitioners. In  its 2018 decision on the issue, the Bench directed  the case to be listed for further hearings before an appropriate bench. Unfortunately, the matter hasn’t been listed since.   

What’s next?

The practical questions that follow from the 10 March judgement are considerable—and the Court’s direction has left them almost entirely open. The Ministry of Health and Family Welfare is told to act ‘expeditiously,’ with no timeline, no specified quantum, no eligibility criteria and no enforcement trigger. Who qualifies–only those whose deaths are formally classified as AEFI by the existing committees, or those with plausible but unclassified claims as well? What quantum of compensation will be offered, and on what basis? 

The word ‘expeditiously’ has appeared in Supreme Court directions before without producing much urgency. When the Court directed the National Disaster Management Authority in Gaurav Kumar Bansal v. Union of India to frame ex-gratia guidelines for COVID-19 deaths, the scheme that eventually emerged took considerable time and generated its own disputes about eligibility. The compensation framework ordered today will be tested not by the principle it reflects but by the process through which it is designed—and by who is excluded when the fine print is written.

Rachana Gangu represents a meaningful doctrinal step regardless. It situates the no-fault principle—already familiar in the context of road accidents—within a constitutional frame. And it does so with a degree of empathy for the human reality at the heart of the litigation that is, for a Supreme Court judgement, unusually direct. The opening paragraph acknowledges that the pandemic brought grief that cannot easily be expressed in words. Whether the compensation policy that follows will do justice to that grief is a question this Court has, for now, left for the executive to answer.