CG & SG’s must take effective methods to tackle the supply of essential drugs & shortage of oxygen

In light of the continuing surge of infections in the second wave of the pandemic, we direct the Central Government and State Governments to put on record the efforts taken to curb the spread of the virus and the measures that they plan on taking in the near future. At the same time, we would seriously urge the Central and State Governments to consider imposing a ban on mass gatherings and super spreader events. They may also consider imposing a lockdown to curb the virus in the second wave in the interest of public welfare. Having said that, we are cognizant of the socio-economic impact of a lockdown, specifically, on the marginalized communities. Thus, in case the measure of a lockdown is imposed, arrangements must be made beforehand to cater to the needs of these communities (Para.68).

IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC

Suo Motu Writ Petition (Civil) No.3 of 2021

Decided on the 30th of April, 2021

The present writ petition was adjudicated by a divisional bench of the Supreme court consisting of Justice Dr. Dhananjaya Y Chandrachud, Justice L Nageswara Rao and justice S Ravindra Bhat.

The facts of this suo moto writ petition revolve around the distribution of essential supplies and services during the pandemic, with the order being divided into 10 parts by the learned bench, with special emphasis placed on medical infrastructure, allocation of vaccines and the supply of essential drugs.

The origins of the petition dated back to 22nd April, with the court taking cognizance of the unprecedented nature of the pandemic, declaring the same as a humanitarian crisis, while sending notices to the union of India, governments of states and union territories, inter alia. The court stressed on the fact that the jurisdiction it received under the ambit of article 32 did not nullify the powers of the High court under article 226, stating that the same would serve as an invaluable asset in dealing with state related issues respectively.

The Honourable court directed the Union of India along with the governments of various states to file fresh affidavits regarding the supply of oxygen and the steps to be taken in making the same available to those in need, vaccination and the subsequent procedure to be followed, steps to be taken regarding availability of essential drugs in countering the virus and lastly, the enhancement of critical medical infrastructure particularly the availability of beds.

While delivering its verdict on hearing the newly submitted affidavits by the aforementioned parties before the court, the bench opined that a bounded deliberative approach, which was being adopted, would help the UOI and the States in justifying the rationale behind their policy decisions, which are bound by the right to life enshrined under article 21 and the right to equality under article 14 respectively.

The court outlined the fact that the Covid-19 virus fell under the definition of disaster provided under section 2(d) of the Disaster management Act of 2005. It was submitted by the solicitor general that the central government operated under the ambit of the national plan which dealt specifically with biological and public health emergencies. The national plan did not include step by step directions to deal with the pandemic as the virus was a novel one and therefore it cannot be dealt with by a pre-existing set of rules, rather the same has to dynamically evolve. It was held by this honourable court in the case of Centre for Public Interest Litigation vs Union of India, that there was no necessity for the creation of a fresh national plan under section 11 as there was already a plan in place supplemented by various orders and measures taken by the DMA.

The central government through the newly submitted affidavits dated on the 29th of April describe the three-tier set up for tackling covid 19. The affidavits included details regarding a portal set up by the central government, with various state governments feeding in data regarding the number of cases, availability of beds, containment zones, inter alia. The central government claimed that there existed an app termed as the ‘Facility App’ which could be used by health facilities to monitor covid patients, but the same was ignored by state governments and union territories.

With relation to the critical state of oxygen cylinders and their availability, the central government argued on several grounds including the fact that oxygen is not produced evenly throughout India as several states rely on other states for the supply of oxygen, creating a scarcity of oxygen. In order to estimate the amount of oxygen required, a category was established, with three classes, wherein class III patients were the most critical and required an approximate 24L/min of oxygen.

The learned divisional bench directed the central government to consider suggestions which could assist in increasing the supply of oxygen while additionally creating a transparent system. These suggestions included the implementation of a mechanism which displayed real time updates regarding the supply of oxygen from each state to hospitals in various districts, a well-defined plan to deal with the import of oxygen concentrators, a review system with regard to restrictions on inter state travel where oxygen cylinders or other medical equipment was being transported, such restriction would be reviewed to reduce hinderances.

The central government provided the following response to the question of a revised strategy regarding vaccination that had been raised by the Honourable Court:

“During the ongoing consultation with the states, demands/concerns were raised by the various State Governments to expand the scope of vaccination drive to include the beneficiaries beyond the priority groups identified by NEGVAC as approved by Central Government. As a matter of co-operative federalism, it was felt necessary to allow play in the joints and to de-centralize vaccine procurement and to enable the States to expand vaccination drives to other groups between the age of 18-44 years. However, since the priority group as identified by Union of India (which had more vulnerability) was not fully vaccinated, it was considered imperative to carry out two drives separately i.e. in a decentralized manner to achieve higher efficiency and reach. Thus the States were given a participatory role to undertake the procurement of vaccine and for vaccination of any other ‘groups identified drive’ for the 18-44 age group. This would also keep the existing drive of critical groups unobstructed as the 50 percent of the vaccines procured through the GoI channel would continue to support and provide free of cost vaccine to the most vulnerable age groups of 45 years plus in the country health care workers and frontline worker PART E 35 identified by the Union of India who were entitled to get vaccinated under Phase II.” (para 34)

It was further submitted by the central government to the learned bench, that the Finance Ministry had sanctioned 3000 crores towards the manufacturing of the Covishield by the Serum Institute of India. The Honourable court pointed out that it was left to the discretion of the central government to consider the usage of compulsory licensing with regard to the manufacturing of certain drugs to combat the Covid-19 virus, as compulsory licensing could significantly reduce the price of drugs, making the same readily affordable.

Through submissions made in the affidavit, the UOI submitted to the Honourable court that 11 lakh vials of the drug, Remdesivir, had been allocated to States with a high number of cases, with the current production of the same at 74 lakh vials per month. Furthermore, the NPPA capped the pricing of Remdesivir at 3500 rupees per 100/mg vial. The affidavit clarified that the drug Tociluzumab was not the only drug capable of treating inflammation in infected patients, with several alternatives available to the same.

The division bench highlighted the issue of drugs (excluding Remdesivir) being priced at exorbitant rates, making the same inaccessible by several sections of society. The court advised the central government to invoke its power under paragraphs 19 and 20 of the Drug pricing Control Order, 2013, under which the government would be authorised to fix a lower price for drugs in extraordinary circumstances.

The central government submitted a detailed plan with regard to import of Remdesivir, with the division bench suggesting that plans be created with regard to import of other essential drugs to meet the growing demand. The court opined that the central government would be wise to consider augmenting the production of certain drugs prescribed by doctors, such as Favipiravir.

In light of the continuing surge of infections in the second wave of the pandemic, we direct the Central Government and State Governments to put on record the efforts taken to curb the spread of the virus and the measures that they plan on taking in the near future. At the same time, we would seriously urge the Central and State Governments to consider imposing a ban on mass gatherings and super spreader events. They may also consider imposing a lockdown to curb the virus in the second wave in the interest of public welfare. Having said that, we are cognizant of the socio-economic impact of a lockdown, specifically, on the marginalized communities. Thus, in case the measure of a lockdown is imposed, arrangements must be made beforehand to cater to the needs of these communities (Para.68).

The court strongly advised the central government to consider usage of health care workers along with para military forces for the purposes of vaccination. The bench concluded by urging the Central and State governments to put a ban on all mass gatherings, while putting on record all efforts being taken to curb the spread of the virus. The UOI are mandated to reduce the shortage of oxygen supply by the 3rd of May, based on assurances provided by the Solicitor General. The Central government were also directed to formulate a national policy on admissions to hospitals within a period of 2 weeks, to be followed by all state governments mandatorily. Until such a plan was to be formalised, no patient would be denied access to a hospital or any essential drug on grounds of lack of identity proof.

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Rahul Kamath