Supreme Court’s Suo Moto Writ Petition in Re-Distribution of Essential Supplies and Services During Pandemic

KEY TAKEAWAYS

• Article 32
• Article 226
• COVID-19

INTRODUCTION

This suo-motowrit petition is an order dated 22 April 2021. The Court took note of the unprecedented humanitarian crisis in the country, following the outbreak of the COVID-19 pandemic, following this notices were issued to the Union of India, the Governments of the States and Union Territories, and to several petitioners who were before the High Courts. Keeping in mind the matter, the Court appointed two new Amici: Mr Jaideep Gupta and Ms Meenakshi Arora. The Supreme Court began this hearing by noting that the jurisdiction it assumed under Article 32 did not lead to the erosion of a High Court’s jurisdiction under Article 226. But rather, the Supreme Court stressed on the importance of the jurisdiction under Article 226, and how High Courts may be better equipped to deal with issues within their own States, (as we have seen in our prior covered issues.)

SUPREME COURTS ISSUES IN ORDER DATED27 April, 2021

• Outline of the Disaster Management Act: Disaster Management Act, 2005 came into effect on 26 December 2005, therefore, COVID-19 falls under the definition of a disaster under Section 2(d) 5 of the DMA and the provisions of the DMA were invoked for the first time to deal with the present pandemic. Therefore, the Court noted that Section 12 of the DMA empowers the NDMA to recommend guidelines forthe minimum standard of relief to be provided to persons affected by disaster, consequently it made a suggestion that can be looked into by theNDMA to provide relief. The Court decided that the National plan 2019 can be supplemented by the issuanceof additional guidelines to tacklethe issue of admission to hospitals and access to essential drugs and vaccines inrespect of COVID-19.
• Medical Infrastructure: Central Government and State Governments affidavit it noted that, isolation beds (with/without oxygen) were increased to around 15.7 lakhs, as compared to 10,180 before the first lockdown, also, ICU beds were increased to more than 85,000, as compared to 2,168 before. They also mentioned thatupgrades were provided to necessary equipment such asVentilators, N95 masks and PPEs. Owing to this, the State Governments were directed to feed in details of the COVID dedicated health care infrastructure created by them, besides the details of containment zones so specified by them. It was noted that the Central Government has alleged that States and districts did not upload their data regularly enough.
• National Policy for Admission in Hospitals:Further in the affidavit theCentral Government procures and allocates the quantity of medical oxygen to each State, it is the State Governments responsibility to arrange transportation to pick up their allotted quantity from the supply point was noted. It was mentioned that Central Government has taken steps like Enhanced production of LMO in steel plants and by private manufacturers, restrictions on use of industrial oxygen, Augmentation in availability of tankers, Commissioning of PSA plants (Pressure Swing Absorption 16 is a technology to generate oxygen at a local level), Import of medical oxygen, ) Augmentation of availability of cylinders, Setting up of jumbo container based COVID hospitals using gaseous oxygen, and Transportation by Air & Rail. During the course of the hearing, the Solicitor General has also sought to lay down the facts and figures pertaining to production and supply of oxygenby means of a power point presentation. Based off on this, the Solicitor General has stated that there is no dearth of oxygen supply in the country as on date and steps are being taken continuously to augment the supply of oxygen. The Court contended that the protection of the lives of citizens is paramount in times of a national crisis and the responsibility falls on both the Central Government and the GNCTD to cooperate with each other to ensure that all possible measures are taken to resolve the situation. On the issue of the situation that has developed in the last 24 hours in Delhi where patients, including among them medical professionals, died because of the disruption of supplies and the time lag in the arrival of tankers, the Court ordered that this deficit shall be rectified immediately by the Central Government by creating buffer stocks and collaborating with the States through the virtual control room on a 24 by 7 basis.
• Vaccines: Court has expressed its reservations prima facie on the validity of the revised policy under which the states and private hospitals are to procure 50% of the vaccines in order to immunize persons in the 18-44 years age group. Even this age group would consist of persons who suffer from vulnerabilities, the Court added. The vaccination programme has been opened up for persons other than the 45 plus age group, it would not be logical to impose the obligation to source vaccinations for the 18-44 age group on the State Governments. Further the Supreme Court contended that a discrimination cannot be made between different classes of citizens who are similarly circumstanced on the ground that while the Central government will carry the burden of providing free vaccines for the 45 years andabove population, the State Governments will discharge the responsibility of the 18 to 44 age group on such commercial terms as they may negotiate.
• Supply of Essential Drugs: Court has been informed that the Central Government is taking steps to augment the production of Remdesivir, along with that the Court should be provided with details of the methodology used for such allocation.
• Black Marketing: taking judicial notice of the fact that several critical drugs, used to treat COVID-19, such as Remdesivir and Tocilizumab, are being sold at significantly inflated prices or in fake form, an attempt to exploit people‟s misery and profit from their helplessness, the Court added. It directed that, the Central Government can consider constituting a special team to identify and prosecute those who: (a) sell medical grade oxygen/COVID-19 medicines at exorbitant prices; and (b) sell fake substances and recover the concerned substances in addition to this, the Court directed that the Central Government can consider creating a platform for easy reporting and redressal of such cases.

CONCLUSION

The Supreme Court in an order, which was reserved after a daylong hearing on April 30 directed that no patient shall be denied hospitalization or essential drugs in any State/UT for lack of local residential proof of that State/UT or even in the absence of identity proof.The order was passed by a bench comprising Justices DY Chandrachud, L Nageswara Rao and S Ravindra Bhat in the suo moto case In Re Distribution of Essential Services and Supplies during Pandemic. In addition to this, the Central Government and State Governments shall notify all the Chief Secretaries and Directors General of Police/Commissioners of Police that any clampdown on information on social media or harassment caused to individuals seeking/delivering help on any platform will attract and lead to a coercive exercise of jurisdiction by this Court (Supreme Court). What do you think about the steps taken by the Supreme Court on the issue of COVID-19, in our Country? Let me know in the comments dwn below!