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A three-judge Bench of the Supreme Court has made it amply clear that strict action will be taken against those who clampdown on citizens seeking help or communicating their grievances on social media with respect to oxygen cylinders or any other medical resources to treat Covid-19 patients.
News sources quoted Justice Dr. DY Chandrachud saying, “I flag this issue at the outset. We want to make it very clear that if citizens communicate their grievances on social media and the internet then it cannot be said to be wrong information. We don’t want any clampdown of information. We will treat it as a contempt of court if such grievances are considered for action. Let a strong message go to all the states and DGP of states.”
Justice Ravindra Bhat pointed out how medical professionals have been overburdened with this crisis. “Medical professionals are reaching a breaking point. We cannot just say they are Covid warriors. Look at how nurses are dying. They play a vital role. It is time we speak about them and express gratitude,” he said, tweeted LiveLaw. He urged Tushar Mehta, to use his powers as Solicitor General to ensure that medical professionals are paid more.
Vaccination Policy
The Supreme Court questioned the Centre on why it is not following a ‘national immunisation policy’, flagging concerns about exclusion of Scheduled Caste/Scheduled Tribe and disenfranchised people from vaccination coverage, reported LiveLaw.
Justice Chandrachud asked the SG, “How will the Centre ensure registration for vaccines for illiterate people considering the fact that COWIN app registration is mandatory?” The Bench also posed questions regarding vaccine pricing. Justice Bhat was quoted saying, “Manufacturers are charging Rs. 150 from the Centre but Rs. 300 or 400 from states…The price difference becomes 30 to 40,000 crores. There is no point in price difference.”
Justice Chandrachud raised some pertinent issues regarding the current policy. LiveLaw reported him asking, “Why can’t the Centre acquire a hundred percent, identify the manufacturers and negotiate with them and then distribute to the states? We are talking about the centralisation of the procurement and the decentralisation of the distribution. You have given 50% quota to the states.”
Justice Bhat compared the Indian vaccine prices to other countries and wondered why the rate is high in India considering our huge consumption rate. He said, “It is $2.15 in the US and it is low even in the EU. Why must it be 600 to the states and 1200 to the private hospitals in India? Our drug consumption parallels no one! We are the largest consumer!”
The Bench then told the Centre to not leave pricing issues to the vaccine manufacturers. “Rule 19 and 20 of Drugs Price Control order mandates you to control the price of drugs, whether you procure or not let states get it from you….Don’t leave it to the manufacturers. How will they determine equity? Invoke your powers to see that additional facilities are created for vaccine manufacturing,” said the Bench according to LiveLaw.
Section 92 of the Patents Act provides that the Centre can grant compulsory license on a patent if it believes that there is a national emergency, circumstance of extreme urgency or case of public non-commercial use. Section 100 empowers the Centre to intervene, at any time after an application for a patent has been filed at the patent office or a patent has been granted, for government purposes.
The Bench referred to these sections and directed the central government to invoke its powers under Sections 92 and 100 of the Act for compulsory licensing of the Covid vaccines.
Oxygen shortage in Delhi and other States
As per Bar & Bench , the court raised some identified issues and asked, “On oxygen supply, what is the mechanism to display allocation supply..can a mechanism be developed to show real time updates as to how much allocation is being given so that which hospital has how much oxygen can be checked?” The court then addressed the issue of oxygen shortage in the National Capital and said that the union government has a special responsibility with respect to the citizens of Delhi.
“Delhi represents the nation and there is hardly any one ethnically Delhite… Forget about someone not lifting oxygen. You have to push through since you have to save lives Mr Solicitor. You have a special responsibility as the Centre,” Justice Chandrachud reportedly said.
“Delhi represents the nation and there is hardly any one ethnically Delhite. Forget about someone not lifting oxygen. You have to push through since you have to save lives Mr Solicitor. You have a special responsibility as the Centre”, Justice Chandrachud.
— Live Law (@LiveLawIndia) April 30, 2021
Justice Chandrachud pointed out that 500 people have already died in the past 5 days to which the Solicitor General clarified that they were not due to lack of oxygen. “But we have to do something”, said Justice Chandrachud.
SG Mehta told the court that Delhi is currently facing shortage issues because of logistical problems like lack of tankers, etc. The Bench, as reported by LiveLaw, observed that the Delhi Government had demanded for 700 metric tons of oxygen and received only 490 metric tons. The SG said that they are providing more tankers and some industries are also helping with oxygen transportation.
He accepted that Delhi was facing shortage since it is not an industrial area but assured the court that the centre was “putting more tankers to work”, as per Bar & Bench. He also added, “Oxygen supply is a dynamic issue. If there is a sudden surge figures are bound to increase. Then allocation also increases.”
The court asked Tushar Mehta about the approximate average amount of oxygen made available in India and whether there has been a deficit. To this, he said, “It depends on daily need, as on date, no. About 10,000 MT of oxygen is available.”
Justice Chandrachud asked the SG about shortage in other states like Gujarat and Maharashtra for which data was not available. SG Tushar Mehta said that states have been handling the issue effectively. He said, “Many states have handled this very effectively. There is a virtual control room that is working 24×7 and any state which has an emergent need can contact the control room for such assistance. For example, if a tanker is coming from Haryana to Delhi that tanker may be stopped at Haryana as they too face shortage. Then a call goes to the control room and this issue gets addressed,” reported Bar & Bench.
But the SG stated, “By and large oxygen has been supplied to each and every heavy load state. Officials in the control room are in live touch with the chief secretaries of states. Logistical issues at states have to be sorted out.”
The Centre’s affidavit placed before the Bench also states that the demand for oxygen has increased and no country can have unlimited supply of oxygen. According to Bar & Bench, the affidavit reads, “…it is apparent that there has been a sudden increase in the projected medical oxygen required as on April 20 between the initial estimate and revised estimate submitted by Delhi (133%) and Uttar Pradesh (100%). It is also pertinent to note that the medical oxygen in any country cannot be unlimited… It is submitted that the sheer magnitude of this unprecedented surge itself bring with it certain inbuilt limitations in terms of available resources which need to be professionally augmented and utilised.”
The court has reportedly said that it will issue a slew of interim directions for the next 10 days to monitor the situation. “We will formulate a proper order. It is about important policy changes that the centre needs to consider”, said Justice Chandrachud.
In the previous hearing, the court had said that they intervened in the matter as they could not be mute spectators during a crisis like this. The matter will now be taken up on May 10.
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