Relatives of a person who died of Covid-19 seen in mourning at Ghazipur crematorium in New Delhi, India, on Thursday, April 29, 2021. (Photo by Ajay Aggarwal / Hindustan Times)
Relatives of a person who died of Covid-19 seen in mourning at Ghazipur crematorium in New Delhi, India, on Thursday, April 29, 2021. (Photo by Ajay Aggarwal / Hindustan Times)

‘We also hear cries’: Supreme Court asks govt to overhaul Covid plan

Among the urgent suggestions the court made was that the Centre must consider increasing Delhi’s medical oxygen quota by 210 metric tonne (MT), raising it from the current 490MT, which has been a repeated demand of the Dehi government, and ensure that supply reaches the Capital.
By Utkarsh Anand, New Delhi
PUBLISHED ON MAY 01, 2021 04:08 AM IST

The Supreme Court on Friday asked the central government for a “substantial rethink of its policy decisions” on handling of the public heath emergency set off by the second Covid-19 wave, as it emphasised on the augmentation of medical oxygen, an overhaul of the vaccination programme to ensure equitable distribution, and deregulating exclusive intellectual property rights to boost the production of essential drugs.

Among the urgent suggestions the court made was that the Centre must consider increasing Delhi’s medical oxygen quota by 210 metric tonne (MT), raising it from the current 490MT, which has been a repeated demand of the Delhi government, and ensure that supply reaches the Capital.

“The intervention of the Supreme Court must make a difference in people’s lives. It must save some lives,” remarked the bench, headed by justice Dhananjaya Y Chandrachud, as it listed out the areas of concern where, it said, the government must “do some serious thinking on their policy decisions and revisit them”.

Reading out from a note prepared by him, justice Chandrachud highlighted that the focus areas of the court, in its first comprehensive intervention into the current Covid crisis, included the management and augmentation of medical oxygen with a real-time central dashboard for demand and supply; a plan to make vaccines available to everyone in the country at the same price with an endeavour to make them free for the poor and the maginalised; compulsory licences to more manufacturing units after a temporary waiver of the patents in order to ramp up production of essential medicines such as remdesivir and favipiravir; and ensuring hospitalisation to all those who require urgent medical aid.

“We also hear people crying. People who have crossed our paths crying for a cylinder of oxygen. Today the ground situation in the national capital is that there is no oxygen...or for that matter, in Gujarat or in other states. We can’t revive who have left us but we can certainly do something to save life of several others. We want you to tell us within a foreseeable future, what is going to be the difference? How will things change on the ground?” the bench, which included justices L Nageswara Rao and S Ravindra Bhat, asked solicitor general Tushar Mehta, who represented the Centre.

While fixing the next date of hearing as May 10 to enable the Centre to respond to the necessity of modifying its policies, the bench said it will issue some interim directions to take care of the present situation, and the order will be uploaded on the Supreme Court website on Saturday morning.

One of the immediate directions, the court said, will be on ensuring that no patient is turned away by a Covid care facility in any state for want of a residential proof or any particular identity card.

The S-G responded that the Centre was talking to all states since it was aware that there could be a second surge of infection which could be more serious than the first wave. He said that the Union government may issue directions for a uniform policy for admission of patients in the hospitals while other priorities such as augmentation of medical oxygen and ramping up of vaccine manufacturing were being looked into diligently.

When Mehta said that the Delhi government has not been able to lift the allotted quantity of oxygen for want of tankers, the bench responded that the Centre had a “very valuable responsibility” where citizens of Delhi were concerned.

“Delhi represents the nation and there is hardly any one ethnically Delhiite. Delhi represents people from all over the country. You have a special responsibility as the Centre,” it observed and added that the Centre must also help Delhi in arranging tankers for transportation of oxygen.

In the suo motu (on its own) proceedings of the top court, Mehta was assisted by Sumita Dawra, an additional secretary in the ministry of commerce and industry, who heads the oxygen procurement and supply coordination team at the Centre. Dawra contended through a presentation that there was enough quantity of medical oxygen available in the country, and the issues relating to tankers and transportation were being ironed out.

The court had several pointed queries on the vaccination policy, apart from ramping up the production of essential medicines by way of deregulating the patent. Justices Chandrachud and Bhat repeatedly underscored that there was a looming national emergency, requiring the Union government to suspend the patent rights of the manufacturers of essential drugs so that more units could be put to task to meet the pressing demand.

The bench reminded the S-G of the pertinent provisions of the Patent Act, asking why the Supreme Court should not issue authorisation for using the patent for government purposes whereby the government could give compulsory licences for generics to manufacture remdesivir, favipiravir and tocilizumab after temporarily suspending the intellectual property rights.

“You can declare a national emergency and then use your powers under the Patents Act so that anybody can manufacture these drugs on your licences. This is a case where we should go for compulsory licensing. Look at statistics. Germany, Canada and many other countries have done the same thing. This is a public health emergency. You have no less than 10 PSUs that can take over and start manufacturing,” the bench told the S-G, asking for a response to this on the next date.

“Doha Declaration of TRIPS shows that member states can take such steps to protect right of public health. Why should the court not issue directions under Section 100 and Section 92 to enable generics to manufacture these drugs without the fear of legal action? Is the logistical concern more important than right to health?” asked the judges.

The bench added that under the existing legal regime, India could bypass the patent rules for remdesivir by importing the drug from Bangladesh, and could also take a licence from the neighbouring manufacturer to produce the drug in India.

About the vaccination programme, the bench questioned the difference in vaccine pricing for the Centre and states, and asked why citizens of the same country should be made to pay more based on when or where they were inoculated.The court urged the Centre to follow the model of the national immunisation programme, where the Centre negotiated with the vaccine manufacturers and bought vaccines for the entire country while the states took care of the transportation.

“Why isn’t the government buying 100% of doses? What is the rationale of Centre and state pricing? Ultimately it is for the citizens of the same country. You have created this duopoly of manufacturers and only Serum Institute of India and Bharat Biotech are producing these vaccines. But we cannot allow cooperative federalism when it comes to pricing of drugs. This is a national emergency. You place the order and let states lift it. You have been able to get at 150 for 20 crore people. The same manufacturers are now charging states between 400 and 600,” the court told Mehta.

It further noted that the vaccine companies were selling the vaccines at lower prices to foreign nations. “Why should we, as a nation, purchase it at a higher rate? There is no point of different prices,” the bench told Mehta. “We are talking about the pricing of the vaccines because we believe that the most marginalised of the people should get the vaccine free even if they are below 45,” added the court.

It also wanted to know from the government the investments it has made and advances given to the two companies -- Serum Institute of India and Bharat Biotech -- for research and innovation, as well as for increasing production of vaccines.

The bench asked Mehta how the government expected illiterate people and marginalised sections to register themselves on the centralised CoWin portal for inoculation when they neither had the knowledge nor the access.

Some of the other issues that the Centre needs to address by May 10 include the availability of beds, proactive testing, number of Covid care centres, adequacy of health care professionals, their protection and treatment, and helplines in every district.

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