Can’t watch national crisis silently, says Supreme Court

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“We cannot remain a mute spectator in the times of a national crisis”, said the Supreme Court on Tuesday as it sought details of availability of medical oxygen, supply of essential medicines, ramping up of critical medical infrastructure, and the rationale of vaccine pricing from the central government to assess its readiness.

“This is a national crisis and the Supreme Court of India, being the national constitutional court, cannot be a silent spectator… the intervention of this court has to be appreciated in proper perspective. The court has jurisdiction under Article 32 towards the protection of fundamental rights. In the face of a national crisis, the court cannot stand silent as a mute spectator,” said a bench, led by justice Dhananjaya Y Chandrachud, while hearing the matter registered suo motu (on its own).

The bench, which included justices L Nageswara Rao and S Ravindra Bhat, also put the record straight that the Supreme Court was concerned about the national issues that are beyond state boundaries while the jurisdictional high courts can continue to issue suitable directives in the cases being heard by them on the resurgence of the pandemic.

“By the pendency of these proceedings, the high courts are not restrained from continuing to deal with the issue that they are seized of… High courts are best situated to assess the ground realities in each state and come up with flexible solutions for practical concerns of the citizens. The high courts are in a better position to monitor the territorial situation. At the same time, it is also important for the Supreme Court to intervene to look into the systemic, national issues and ensure the coordination at a national level and between the states, which the high courts may find difficult to deal with,” it said.

Fixing the next hearing on Friday, the bench added it wants a “unified national plan” from the central government to serve the needs of citizens of this country. “What have you done till date is one thing but what you plan to do for the future is what we want to know from you…Where do we stand and what have we planned for the future,” the bench told solicitor general Tushar Mehta, who represented the Centre.

Mehta replied that the government has filed a detailed affidavit on Tuesday, elucidating how all available resources are being put to their optimum use in assistance with the state governments, and that the Prime Minister was personally looking into the efforts to deal with the sudden surge in the infection.

Last week, a controversy ensued after a bench led by then CJI SA Bobde took a suo motu cognisance of the surge in infections the day before his retirement and appointed senior advocate Harish Salve as the amicus curiae to assist the court. This, even as Salve represented Vedanta, which wanted to operate its controversial shuttered plant in Tamil Nadu. Several senior advocates such as Indira Jaising, Vikas Singh, Dushyant Dave and Sanjay Hegde questioned the move, asking if this was an endeavour by the Supreme Court to hold the hands of the high courts that were already supervising these issues in their jurisdiction, keeping the Centre and state governments on their toes.

On Friday, justice Bobde had clarified that they had not restrained the high courts from taking up the matters while Salve withdrew as the amicus in the wake of the controversy surrounding his possible conflict of interest.

Meanwhile, various senior advocates appearing for different state governments and stakeholders on Tuesday raised issues pertaining to the supply and transit of oxygen, and the differences in prices of the two vaccines – Covishield and Covaxin — between the Centre and states.

Senior advocate Anand Grover, appearing for People’s Health Movement, suggested suspension of intellectual property rights of the companies so that shortage and pricing of essential medicines could be taken care of, while senior counsel Siddharth Dave, appearing for another applicant, said there should be a uniform policy across states for admission in hospitals.

Calling them “relevant issues” for consideration by the Centre, the bench also sought to know from the Centre basis and rationale of pricing of the vaccines while pointing out that the Union government apparently has powers under the Drug Price Control Order and the Patents Act to regulate the prices during a national emergency.

“If this is not a national emergency, then we fail to understand what is… If you clarify this, a lot of issues would be resolved at the level of the high courts,” observed the bench, asking the Centre to also explain the steps that the Union is taking to ensure everyone above 18 is vaccinated once the new drive begins May 1.

In Phase 3 of the vaccination programme, in which everyone above 18 can get the jab from May 1, the manufacturer has fixed the prices for Covaxin at 150 for the Centre and 600 for the states, while it is 1200 for private hospitals. Covishield will cost 150 to the Centre, 400 for the states, and 600 to private hospitals.

New Covid-19 cases in India continued to shatter global records on Tuesday, as the country saw 362,850 single-day infections, its highest ever, taking the total number of cases in the country to nearly 18 million, even as new deaths due the disease soared past the 3,000 mark — also for the first time — amid a crippling shortage of medical amenities in dozens of states with high caseloads.

The top court bench also clarified that by hearing these issues, the top court is not taking over the functioning of the government but will rather play a complementary role by giving valuable suggestions and inputs.

“Recrimination won’t save people’s lives. Let us all find solution and that is my appeal to all the members of the Bar. Let this not be adversarial,” the bench told all the counsel.

In its order, the court underlined five focus areas. These included projected demand and distribution for oxygen in the country at present and the future and the steps being taken to augment it; enhancement of the critical medical infrastructure such as number of beds, and Covid treatment centres equipped with health care professionals; availability of essential drugs such as remdesivir; the projected requirement of vaccines and the modalities to ensure that any deficit will be catered to apart from rationale of their pricing; and a system of seamless communication from a district-level officer to the Union ministry of health.

Adjourning the matter to Friday, the court said that it will go through the affidavits submitted by the Centre and that the S-G may file an additional response to the queries being underscored by the bench.

Centre’s affidavit

In its affidavit, the Centre has said that a national disaster management plan is already in place since November 2019 and that this plan specifically deals with “biological and public health emergencies” while providing for a broad framework in terms of the response to be provided in pursuance in case of any disaster.

“A national plan does not and cannot contain step by step instructions or specific directions for the day-to-day management by government agencies in the situation of any particular and unforeseen disaster…the decisions taken till date by the central government, as per the national plan, and as per the procedure laid down therein, have been according to the contemporaneous knowledge about the nature, efficacy and the effect of Covid-19 on large populations,” stated the affidavit.

About the production of remdesivir, the Centre said that owing to a limited demand for the antiviral drug during the preceding months, the seven licensed manufacturers in India produced 2.7 million vials of remdesivir per month whereas the total installed capacity was 3.88 million vials per month.

On medical oxygen, the Centre told the court that the resource cannot be unlimited in any country, and the government was augmenting oxygen supply on a war footing with the active and constant supervision of the Prime Minister.

It added that oxygen supplies available at any given time is meant to be distributed to the states, especially those which are critically burdened with high number of active Covid-19 cases, in a balanced manner.

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