The ‘second wave’ of the Covid-19 pandemic has left India in a bad situation. The number of positive tests has reached record highs exceeding 3 lakh a day and the number of deaths a day exceed 3000. Hospitals are running low on oxygen. People are also noticing a shortage of essential drugs. To curb this second wave, there is increasing pressure on all fronts to increase vaccination numbers.

 

In this context, CJI Bobde’s bench took suo moto cognisance of the situation on 22 April. They were hearing Vedanta's plea to reopen its Sterlite plant to produce oxygen. The bench also comprises J. Nageswara Rao and Ravindra Bhat. The Chief Justice had noted the disparate approaches in High Courts and sought to create a ‘national plan’. The bench issued notice to the States, the Union and parties before High Courts.

 

23rd April, 2021 - Salve Recuses Himself as Amicus on First Day

The case was then heard on 23rd April. Harish Salve, who had been appointed amicus, requested for a recusal. This was because he didn’t want the sensitive case to be heard under a ‘shadow’. He referenced arguments that he had a conflict of interest since he was representing Vedanta, and that he was a childhood friend of the Chief Justice.

 

During the hearing, the judges also clarified that they did not seek to interfere with the High Court. The Supreme Court Bar Association had concerns about this and had filed an immediate intervention the previous day. The Solicitor General requested time to file a comprehensive reply. So, an order was passed allowing Harish Salve to recuse himself, and the matter was adjourned for the day.

 

27th April, 2021 - Bench Provides Tentative Framework 

CJI Bobde retired on 23 April. When the case was listed on 27 April, J DY Chandrachud replaced him.

 

 

During this hearing, the Court clarified that it did not seek to ‘supplant’ High Courts. They had a broad jurisdiction under Article 226. And were better placed to understand ground realities. However, the Supreme Court cannot be a ‘mute spectator’ and has a complementary role to play in addressing national, systemic, and inter-state issues.

 

Since the bench and other counsel required time to go through the Union’s plan, the Court did not go into the substantive issues. They appointed two new amicus curiae: Senior Advocates Meenakshi Arora and Jaideep Gupta. The State of Rajasthan had also sought to correct a Delhi High Court order on seizing tankers. The Court directed them to approach the Delhi High Court instead.

 

The bench also passed an order providing a tentative framework of issues they wanted to handle. It included the following issues:

  • Projected demand for oxygen and the steps taken to monitor and increase its supply.
  • The basis for allocating oxygen to states and ensuring daily communication on States’ requirements.
  • The availability of beds and treatment centres.
  • Policy specifying norms for admitting patients to hospitals .
  • Steps to ensure essential drugs are available and controlling prices and hoarding.
  • Ensuring daily communication of requirement of drugs from Districts and States.
  • The projected requirement of vaccines and steps to procure them to address the current deficit, including in order to administer the second dose.
  • The method of allocating vaccines to States and the rationale for pricing of vaccines (including differential pricing for the Union and States).

 

30th April, 2021 - Bench Addresses Issues Around Drug Pricing, Oxygen Availability and Transportation 

On day three of the hearings Justice Chandrachud addressed the affidavit submitted by the Solicitor General, Tushar Mehta on behalf of the Union of India. He emphasised the dialogical role of the bench in this hearing. Justice Chandrachud reiterated that matters of local importance must be raised in the High Courts while the Supreme Court dealt with issues of national importance and with cross border concerns.

 

Justice Chandrachud addressed the affidavit by highlighting sections that required more clarity. And posed questions that the affidavit hadn’t sought to answer. These issues broadly included –

  • Information about the mechanism of oxygen supply and allocation to the states from the Centre.
  • The availability of information to individuals and the States regarding availability of oxygen, with an emphasis on the rationality of distribution.
  • Vaccination drives for frontline workers.
  • Restrictions the Centre has considered short of a lockdown to curb the virus.
  • Questions of access and awareness in rural areas with specific regards to access for those without internet due to the Centre mandating registration on the COWIN app in order to receive the vaccine.
  • The viability of a national immunization model where the Centre buys 100% of the available medication prior to allocation to State Governments in order to curtail the differing prices of the vaccine for the State Governments and the Centre.
  • The ability of the court under Sections 92 and 100 of the Patents Act, 1970 to enforce compulsory licensing i.e., allowing someone else to produce a patented product without the consent of the owner specifically in a national crisis.
  • The Centre’s responsibility in tracking mutant strains, regulating hospital standards for admission and treatment, importing generic drugs as allowed under the patents act, and accounting for States lacking in facilities.

Justice Chandrachud also referred to his own opinion in Puttaswamy to emphasise the importance of an informed citizenry in times of crisis. Any efforts to cause an information clampdown in the country were strongly castigated, a position that the Solicitor General agreed with.

 

The 3-judge bench also repeatedly and strongly emphasised that this hearing is not meant to be adversarial and the sole purpose was to help the country move out from the pandemic.

 

Drug Pricing

Justice Bhatt brought up the issue of drug pricing in the current scenario. He put forward that India was at the forefront of TRIPS (Trade Related aspects of Intellectual Property Rights) when it came to the issue of compulsory licensing and the organizations that are producing medications have received substantial grants. Justice Bhatt pointed out to the Solicitor General that the Centre had the power to mandate a set price.

 

Justice Chandrachud asked questions about accessibility to the marginalized. Out of the 50% of the vaccines dedicated to those between the ages of 18-44 by the Centre, a significant proportion fall into these margins. Justice Chandrachud highlighted this plight in order to further his point regarding the necessity of a national immunization model at the current juncture.

 

Justice Bhatt bemoaned the current situation of private manufacturers deciding the allocation of resources and that a private manufacturer cannot “…decide the allocation and provide equity of a public good”. He then directed The Solicitor General to tell the Centre to pick this up and ramp up the availability of the vaccines.

 

Advocate Vikas Singh, President of the Supreme Court Bar Association, raised two issues on the subject of drug pricing. Firstly, he pointed out that a reduction of the vaccine price from 350/- to 300/-, with the Centre budgeting 35000 crores for vaccines, would allow for the Central Government to cover the entire population. Secondly, he brought to the court's attention a television report from NDTV where Adar Poonawalla had claimed that even at 150/-they were turning a profit on vaccine sales.

 

Augmentation and Availability of Oxygen

Justice Chandrachud then questioned the Solicitor General about the root of the oxygen shortage problem. The Solicitor General stated the problems did not lie in the availability of oxygen, but in the inability of state governments to “lift” i.e., transport and handle the oxygen.

 

On the subject of the shortage in Delhi the Solicitor General referred to a letter from a supplier that stated the Delhi government had failed to lift the oxygen they made available. He said that Delhi was a non-industrial state and to meet oxygen needs they needed to import. The submission was that the Centre and philanthropic industries were providing aid in doing so.

 

Justice Chandrachud responded to the Solicitor General with the fact that the Central Government was still responsible to the citizens of Delhi and referred to the surplus oxygen currently in the steel sector as a possible way to begin rectifying the shortage. The solicitor general expressed concerns with such an action, stating that any direction would also result in diversion from another area that may also be vulnerable.

 

Oxygen transportation and allocation mechanisms

Chief Secretary Sumita Dawra put forth a comprehensive presentation regarding the mechanism being used for oxygen distribution and allocation. Chief Secretary Dawra also used her time to expand upon the efficacy of the virtual control room in monitoring the needs of states, especially those worst affected, and directing resources to those in need.

 

She explained how at the inception of the control room there was an understanding that the framework they created could not be rigid as this is an evolving crisis with needs fluctuating constantly. On inquiry from the bench, Dawra and the Solicitor General put forth that States are being provided with real-time updates from the central control room and are given regular access to retrieve data.

 

The logistical role of the Centre and the control room was said to be mostly facilitative and to provide a platform where States and other players are to play their role.

 

Interlocutory Applications

A multitude of parties were present in the hearing, representing a wide variety of parties including State Governments, interest groups and individuals alike. The bench directed that all those with Interlocutory Applications are to submit them to the Amici Curiae for this case. The Amici for this matter have been tasked with deciding which IA’s will be heard by the court in future hearings.

On acceptance of their request to appoint Advocates on Record to assist them, they appointed advocates Mohit Ram and Kunal Chatterjee.

 

5th May, 2021 - Justice Chandrachud and Justice Shah hear the Centre's appeal against Delhi HC Order

 

The Delhi High Court initiated contempt proceedings against State and Centre officials for failing to comply with the Supreme Court’s order regarding oxygen supply to Delhi.

The Bench, in order to understand why the Supreme Court’s order was not complied with, sought clarifications on the mechanism of calculating the need of each state. Justice Chandrachud rejected the Solicitor Generals presented formula that was based on the number of beds that require oxygen on a national level. This was on the grounds that the formula was based on assumptions which may not be accurate when considering individual states.

The Solicitor General presented a breakdown of the daily oxygen influx into Delhi. Justice Chandrachud followed up by suggesting that the Centre attempt to replicate the Mumbai model that the Mumbai Municipal Corporation adopted under similar circumstances. As a result of this model, a buffer stock of oxygen was maintained which the bench strongly urged the centre to begin moving towards themselves.

In the order dictated by Justice Chandrachud, he identified the dimensions to the problem that require immediate action from the centre.

  • First, a requirement to communicate the methodology of the current formula and to update it to include a basis besides available beds.
  • Second, a requirement to properly manage and optimize oxygen with an efficient supply chain and a buffer stock.
  • Third, a communication of actual availability that can be conducted through an audit.

The court stayed the contempt order of the Delhi High Court whilst clarifying that it shall not act as a restraint on the High Court in its efforts to monitor the situation.

 

6th May, 2021- Bench hears Centre's plan for Oxygen supply in Delhi

 

Following the stay order for the contempt notice issued by the Delhi High Court, the Bench consisting Justice D.Y. Chandrachud and Justice M.R Shah, heard the Centre’s explanation and plan for the supply of oxygen in Delhi.

The Solicitor General Mr. Tushar Mehta and Additional Secretary Ms. Sumitra Dawra presented the Centre’s plan for supply, including a plan for the transportation of oxygen tanks. The Solicitor General noted that while there is sufficient supply of oxygen in Delhi, the issue of shortage is being caused by systemic failure. This included the inefficiencies in transport, such as time taken to unload large supplies.

Senior Advocate Mr. Rahul Mehra noted that there are issues with the allocation of oxygen cylinders. Some states were being allocated more than their request, while other states such as Delhi were being under-supplied. He suggested that allocation be taken up by the Centre.

The amicus curiae Senior Advocates Ms. Meenakshi Arora and Mr. Jaideep Gupta noted that the plan was short-sighted and did not look at projections for the future. They said that experts and epidemiologists can be consulted to propose a projection.

The Bench highlighted certain issues as listed below:

  • Buffer stock: They highlighted the sudden increase in demand in states such as Karnataka, and the need for a buffer stock of oxygen. When supply falls on certain occasions, storage units must have buffer stocks.
  • Healthcare workers: They also noted the dire need for healthcare workers, since they have been overworked since the beginning of the pandemic. Justice Chandrachud suggested the utilization of existing human resources such as NEET PG aspirants and trained nurses. NEET PG aspirants would be incentivized with grace marks.
  • Rural Health Infrastructures: The bench also noted that while cities like Mumbai and Delhi are developing plans, it is important to create a dynamic pan-India plan. Such a plan must facilitate supply to rural areas which often have rudimentary health infrastructures.
  • Third Wave: Justice Chandrachud noted that there is no proposed plan for a potential third wave. He noted that a third wave will affect children who will need to be accompanied by adults, therefore requiring speedy vaccination of said adults.

The Bench made the following suggestions:

  • Oxygen Supply in Delhi: Until the next hearing on Monday, the Centre is expected to ensure a minimum of 700 metric tons of oxygen supplied to Delhi.
  • Oxygen Audit: The need for an audit of existing supply, scarcity and projected demand for oxygen is to be done. The audit is also expected to yield a plan for allocation of finances and prevention of sale of oxygen in the black market. The Centre is to recommend names of members for this committee.