The matter was listed before a bench of Justices DY Chandrachud, Nageswara Rao and Ravindra Bhat. After hearing the connected matter on reopening the Vedanta sterlite plant to produce oxygen, they began hearing this suo moto petition.
J Chandrachud laid out that the object of the suo moto matter was not to supplant High Courts. Article 226 has a board jurisdiction and they are in a better position to monitor their State. However, the Supreme Court’s aim is to ensure coordination at a national level which High Courts may not be able to address. Further, when there is a crisis, the Supreme Court cannot be a ‘silent spectator’ and they must play a complementary role.
He also indicated that he will appoint two amicus curiae to provide a vision and a ‘balance of different perspectives’, though the order will ultimately be of the court.
Union Submits Response
Solicitor General Tushar Mehta apprised the Court that he had submitted a detailed written reply to the suo moto notice. However, since it was filed earlier that morning, the bench and other counsel had not yet received copies of it. He particularly pointed out that he had praised Tamil Nadu and Kerala for managing to reduce oxygen demand in their states. He said this indicated that the nation is together in this struggle irrespective of political partisanship.
He indicated that the report had detailed the steps taken by the Government since the start of the pandemic. He agreed that High Courts’ jurisdiction should not be questioned. There are some inter-State disputes, but even those are being ironed out with provisions of the Disaster Management Act, 2005 (‘DMA’).
J Bhat asked Mehta to address whether there was a plan to use central resources such as paramilitary forces and army resources for the general public. He also asked whether the pricing of vaccines could be regulated under the Drugs (Price Control) Order, 2013. Or whether there were plans to utilise S. 100 of the Patents Act, 1970. This provision allows the Government to authorise patented inventions, such as the vaccine, to be used for the government. Mehta responded that this was contained in the written reply, and more details would be submitted if necessary.
Senior Advocate Vikas Singh appeared for the Supreme Court Bar Association. He submitted that they welcomed the Court’s intervention on national matters. He also appeared for the State of West Bengal. He argued that there should not be differential pricing between States and the Centre for the vaccine. Currently the Centre negotiates pricing, and accesses the vaccine at lower rates. He also recommended that State Secretaries be included in daily meetings of the Central Task Force under the DMA.
Rajasthan Raises Issue with Delhi HC Order
Senior Advocate Dr. Abhishek Manu Singhvi appeared for the State of Rajasthan. He informed the Court that over the last few months, the State of Rajasthan had requisitioned 23 oxygen tankers. This was done under provisions of the DMA through a Central Order. It was necessary to ensure transport of oxygen over long distances in the sparsely populated and large state.
He argued that Inox, the company which manufactures oxygen in Bhiwadi, Rajasthan had misrepresented this to the Delhi High Court. They had said tankers were ‘detained’ and ‘stopped’ from transporting to Delhi, when they were lawfully requisitioned. So, the High Court had passed an order to take possession of 3-4 of these tankers.
SG Mehta informed the Court that this was in the context of some local district administrations who stopped tankers from leaving their State. This has been criminalised and has stopped. Standing Counsel for Delhi, Senior Advocate Rahul Mehra also submitted that they no negative agenda against any State. The Delhi HC had asked States to discuss any concerns with the Centre and provided a medium for correction. This could be done through the Centre’s ‘mapping system’.
The bench asked Singhvi why he did not approach the High Court. Singhvi responded that they had not been a party. On his request, the Court passed an order allowing him to approach the Delhi High Court.
Bench Tags Matters, Provides a Framework and Adjourns to Friday
Senior Advocate Niranjan Reddy appeared for the State of Andhra Pradesh. He requested that the Centre amend its policy to allocate sources of oxygen. Currently the entire State of AP is allotted oxygen from Orissa. This disrupts existing supply in the Southern part of the State which sourced oxygen form Tamil Nadu. J Rao agreed and asked Mehta to take note of this suggestion. Mehta informed the Court that to his knowledge, this might already be in the process of implementation.
Senior Advocate Anand Grover indicated he was appearing for two intervenors, the People’s Health Movement and the Swasthya Abhiyan. They had suggestions on the supply of essential drugs: specifically, remdesivir, tocilizumab and favipiravir. They also wanted the Government to use S. 100 of the Patent Act, 1970. This would be in the spirit of what India was requesting at the TRIPS Council. India is currently asking for a temporary waiver of IP rights over vaccines.
Senior Advocate Siddharth Dave appeared for another private intervenor. He sought a uniform policy for admission to hospitals. Currently, in Gujarat people can receive admission only if they arrive by ambulance. In Delhi, they need the SDM’s sanction. He argued such policies violate the right to access emergency medical services under Article 21 of the Constitution of India, 1950.
J Chandrachud said these intervenors would be heard to the extent they addressed national policy. He indicated that they should adjourn for two days until the bench and other counsel could read the Union’s reply. In his order, he noted the scope and purpose of this suo moto litigation. He then listed out a framework of questions that would be asked. These included the basis of allocating oxygen, the status of essential drugs and the pricing and provision of sufficient stocks of vaccines. He also asked for the Centre’s methodology for consulting States in their decisions and their communication strategy to disseminate information to the public.
States would also provide data on their medical infrastructure. Since all of these responses would take time to draft, the Court adjourned till Friday, 30 April. Senior Advocates Jaideep Gupta and Meenakshi Arora were appointed as amicus curiae. J Chandrachud pointed out that he expects a ‘spirit of cooperation’ and that ‘recrimination will not save lives’.