ILNS: Hearing a suo motu plea on the supply of oxygen, essential drugs, the method and manner of vaccination, and the power to declare lockdown amid the COVID-19 pandemic, the Supreme Court on Tuesday made it clear that it was in no mood to stop hearings at the different High Courts on this issue.
The bench, led by Justice D.Y. Chandrachud and also comprising Justice L. Nageswara Rao and Justice S. Ravindra Bhat, said that the High Courts are in a better position to monitor the situation. The High Courts have wide power under Article 226 of the Constitution, though it does not make the Supreme Court a mute spectator.
Justice Chandrachud said the Supreme Court’s function here is complementary, especially when there is a pan-India issue being considered.
During the hearing – this was adjourned from the last day of former CJI SA Bobde’s tenure in office – Solicitor General Tushar Mehta said, “On page 135, this is the letter sent by the Additional Director, Health. It says the States of Kerala and Tamil Nadu are being praised for rational use of oxygen.”
Justice Chandrachud said, “Let us peruse the affidavit. It is necessary to clarify what is the need of issuing a showcause notice in those matters.”
The SG said, “I would like to tell my lordships about the steps taken since this pandemic started in 2019; what directions have been issued. We have presented a holistic picture as a nation. We have placed it on record.
“Secondly, whatever the coordination aspect between the states, it is taken care by the highest level of governance. There are no issues between one state or the other and it is not a question of jurisdiction of the High Courts. We are here before you as a nation.”
Justice Bhat said, “We have the Army, Railways, Doctors, which can be made available for the various aspects regarding vaccination, combating Covid and the supply of oxygen. What is your national plan regarding this? The Central Government has the power under the Drug Control Act. What is your consideration regarding this? During this national pandemic, the Centre must have done this. If you haven’t put it on record yet, you must.”
SCBA President Vikas Singh said, “For the first time, we are seeing different pricing of the same vaccine. The price should not vary between the Centre and the states. The other aspect is of oxygen supply. Our views should be taken up. All the states can be consulted on a daily basis.”
Senior Advocate Abhishek Manu Singhvi, for the State of Rajasthan, said, “It is the largest state with lowest density. It is touching five states and touching on Pakistan. Yesterday, figures were 1.29 lakh active cases. Our oxygen requirement is double.”
The SG said, “Nothing is cast in stone that we cannot change the rules. Suppose supply is coming from A state to B state, and a surge happens in another state. The supply can be passed on to that state. This can be an example, we are open to provide oxygen where there is maximum requirement.”
Justice Chandrachud said, “So we will pass a small order today. Let us have the benefit of what the Government says. We are also going to formulate the broad concern in our order today, if the Government has not filed an affidavit regarding those concerns, so that they can file an additional affidavit later.”
Senior Advocate Anand Grover, appearing for NGO People’s Health Movement, took the court through essential drugs for treating COVID-19.
“A limited number of companies are producing these drugs due to restrictions. We filed an application in the Supreme Court earlier regarding health care facility and costing. There are three drugs, which are overpriced. Our application is to the effect that the Government should issue what is called a Government Authorisation under the Patent Act Section 100 in the spirit of what the Government of India is advocating. Other is the issue of vaccines.”
Senior Advocate Siddharth Dave said, “I am urging the Court to lay down uniform policy for admission of COVID infected persons. States cannot deny a person admission to a hospital. Article 21 is violated. If a person is COVID positive, he has to be admitted in the hospital. I am filing an IA with regard to that.”
The SG said, “Every High Court is seized of the issue. Its a genuine concern.”
Justice Chandrachud said, “He wants the Centre to lay down the guidelines for admission of patients. He doesn’t want us to lay down the guidelines. He is simply asking what should the Policy for admission be.”
The SG said, “It has to be left to the State Government.”
Justice Chandrachud said, “It should be the policy with regard to Hospitalisation. What will be the factors for admitting a patient in the Hospital? You have to leave free play between the states. There should be a broad National framework on when hospitalisation is necessary. What will be your policy regarding admission of patients? We will certainly address these issues on the next date of hearing. We will look at the citizens’ grievances.”
The Bench said, “Let us formulate something. By our previous order (April 22, 2021) the Centre was required to file an affidavit with regard to National Plan dealing with issues which have arisen due to the outbreak of the Covid pandemic since March 2020, and with regarding supply of oxygen, supply of essential drug, method and manner of providing vaccination. The Court has appointed the Amicus Curiae to assist the court. The learned Amicus requested to be relieved from the matter.
“During the course of the morning, an affidavit has been filed by the UOI, which could not be circulated in advance to the members of the Bench and the Counsel of the contesting parties.
“We consider it appropriate at this stage to initiate further steps in these proceedings. Appointing the Amicus Curiae to assist the Court and House keeping directions to circulate the affidavit to all parties appeared in this matter,” added the Court.
Justice Chandrachud said, “At the outset, it is necessary for the Court to clarify that the purpose of this Court to process of initiation suo motu under Article 32 of the Constitution is not to supplant or substitute the process of hearing that are being conducted by the High Courts.
“The Jurisdiction under Article 226 of the Constitution is a valuable safeguard for the protection of fundamental and legal rights. Jurisdiction of Article 32 extends to the protection of fundamental rights. The High Courts are best situated to assess the ground reality, which are present in states and deal with the practical concerns of the Citizens in the state.
“Thus, we find no reason or justification to impede the exercise of the jurisdiction by the High Court in responding to the practical problems, which have been faced in the States, by the States, Citizens in the State and by the Union Territories and to find solution with the cooperation of the authorities concerned.
“The court cannot be a mute spectator during this National Crisis. The Role of this Court is complementary with the Role performed by the High Courts. Neither is intended to substitute the other. There may be issues, which are beyond the power of the state. In this spirit, this court has exercised suo motu proceedings.
“During the course of hearing, we have heard brief submission by the SG, the States appeared, Senior Advocate Vikas Singh appeared for West Bengal, Senior Advocate Singvi appeared for the State of Rajasthan, Senior Advocate Ranjit Kumar appeared for Bihar and Senior Advocate Rahul Mehra appeared for Delhi.
“In order to enable the Union of India and the diverse states, we tentatively highlight the following issues; the Government shall provide the total supply of oxygen; the projected supply of oxygen, in present and future; the steps taken by it to meet the demand; the monitoring mechanism, which was put in place to provide oxygen to critically-affected states, and enhancement of critical Covid health sector and hospital beds.
“Steps taken for making the availability of the essential drug. There shall be a daily monitoring of the situation. Two vaccines have been made available in the country. From May 1, the vaccination programme is to be opened up for the age group of 18-45. The UOI shall clarify the projected requirement of the vaccine, in order to meet the demands.
“The UOI shall clarify if any excess vaccine is needed. Also, a comprehensive line of communication shall be made available on a national daily basis. Senior Counsel Jaideep Gupta and Senior Counsel Meenakshi Arora should assist this Court, after perusing the Affidavit filed by the Centre,” added the Supreme Court judge.