During a National Crisis, We Cannot Be a Mute Spectator: SC

The Supreme Court on Tuesday, 27 April, had a suo motu hearing on COVID issues such as shortage of essential drugs.

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Law
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The Supreme Court on Tuesday, 27 April had a suo moto hearing on COVID issues such as shortages of essential drugs, vaccination and implementation of lockdown to contain the rapid spread of the virus.
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The Supreme Court on Tuesday, 27 April, had a suo motu hearing on COVID issues such as shortages of essential drugs, vaccination, and implementation of lockdown to contain the rapid spread of the virus.

The apex court listed the matter for hearing next on Friday, at 12pm, and asked the state governments to file affidavits by 6 pm on Thursday about what facilities and health infrastructure are in place to mitigate the pandemic.

Solicitor General Tushar Mehta stated that “it is not a time for political bickering,” adding that Kerala and Tamil Nadu have been praised for reducing their oxygen demand, and it’s not about any particular party like the AAP or BJP.

The SC bench of Justices DY Chandrachud, L Nageswara Rao, and Ravindra Bhat heard the case noting how the top court’s role is not to prevent the high courts from exercising their power under Article 226 of the Constitution but to play a “complimentary role and help in issues they are not able to look into.”

“High courts are in a better position to look into this. Supreme Court has to intervene too because there may be national or systemic issues. At time of national crisis, SC cannot be mute spectator”, said Justice Chandrachud.

Mehta stated that the Centre would never oppose any constitutional court, be it a high court or the Supreme Court. “We are not questioning anyone jurisdiction. You have to examine steps taken by us. There are certain issues of perception. This from early 2020 and how nobody anticipated the second wave,” said Mehta.

The top court appointed senior advocates Jaideep Gupta and Meenakshi Arora as amicus curiae to “get variety of views on board,” after senior advocate Harish Salve stepped down from the case.

What Happened in Court?

Justice Bhat questioned Mehta on different pricing of vaccinations by different manufacturers.

“There are powers under Section 6 of Patents Act. This is a pandemic and a national crisis. If this is not there then please put all of this before hearing”, said Justice Bhat.

Mehta observed that all the resources are being put to use by the Centre and added, “Jurisdiction of HC or SC is not in question, we are only laying down steps taken in war footing.”

Senior advocate Vikas Singh for West Bengal noted that this was the first time a differential pricing has been set up for the Centre and the states.

“For 73 years vaccine prices for Centre and states have been same. First time its a differential price for Centre and state. As far as oxygen is concerned, the Centre can decide but a task force can have state chief secretaries”, said advocate Vikas Singh.

Centre’s Affidavit Before Supreme Court

The Central government, in its affidavit filed in the suo motu case before the Supreme Court, stated that Prime Minister Narendra Modi is directly involved in the process of procuring oxygen supply.

Mehta also stated, “We should all be proud that this issue is being looked into by the PM and all political parties are coordinating across party lines.”

The Supreme Court had asked the Centre to submit its National Plan. In response, a 106-page affidavit detailing the steps taken by the Centre to deal with issues arising out of the pandemic was submitted.

The Centre told the apex court that the national plan by design keeps aspects of executive decision making open in order to take appropriate measures in fast-developing situations.

The affidavit stated that the 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 Central government also said that they were taking several measures to procure oxygen, including issuing of licences to industrial gas manufacturers to manufacture medical oxygen, through initiatives by Ministry of Steel, and by commissioning Pressure Swing Absorption (PSA) plants.

On Health Infrastructure And Medicines

Senior Advocate Abhishek Manu Singhvi for Rajasthan submitted that the state’s projections say that by 9 May, the demand for oxygen will double, and under the national plan, 125 MT oxygen comes from Bhiwadi and Rajasthan.

Justice Chandrachud observed that the Singhvi has come to an average, and not every COVID patient requires oxygen. To this, Singhvi submitted that the projection is at a “galloping rate”, and Inox, which runs the Bhiwadi plant, made a misleading statement before the Delhi HC.

“Inox stated that they were bringing tankers to Delhi and Rajasthan stopped them. Delhi HC said it hopes such an act is not done. But it is not being considered that 23 tankers is too less for Rajasthan,” submitted Singhvi.

The top court asked Singhvi to appeal before the Delhi HC and present facts there, and noted the SC won’t “enter the micromanagement now”.

The top court asked the Centre to present information in affidavits about total oxygen supply, the monitoring mechanism to fulfil projected demand estimates of the states, the methodology adopted as per state requirements, and critical health infrastructure like beds, and availability of Remdesivir and Favipiravir, as well as data on the vaccination drive.

"The Centre to apprise modality put in place for seamless communication between district collectors with the Union health ministry, along with daily monitoring," Justice Chandrachud said.

Mehta asked the court for time till Friday to file the affidavit and submit that his team has many members who are COVID-positive.

On Thursday, 22 April, the Supreme Court of India had taken suo motu cognisance of the crisis unravelling in the country due to the second surge of the COVID-19 pandemic. The apex court had registered a case on the management of issues arising in various states due to rising COVID cases.

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